UNIVERSITÀ DEGLI STUDI DI SALERNO

DIPARTIMENTO DI SCIENZE GIURIDICHE – SCUOLA DI GIURISPRUDENZA

LABORATORIO GIURIDICO (IUS/13) IN

INTERNATIONAL HUMAN RIGHTS LAW

Religious clothing and symbols in the Jurisprudence of the ECHR

MARIA PINA VIRTUOSO
MAT. 0160111821

  
ANNO ACCADEMICO 2017-2018
 Wearing religious clothing and symbols: an
introduction
Wearing a symbol or item or a certain piece of clothing is a way to communicate one’s faith
and religious belief.
ÞIn other words, it constitutes a ‘‘manifestation of the individual’s religious belief’’, which is
an action protected by Article 9 § 1 of the European Convention on Human Rights:

Article 9 – Freedom of thought, conscience and religion

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.
However, the freedom to manifest one’s religion or belief (and thus, the right to wear
religious clothing and/or symbols) is not absolute.
This means that it must be balanced with other legitimate interest that come into
play, such as public safety, public order, health, morals and the protection of the
rights and freedoms of others.

As we can see, this emerges clearly from § 2 of Article 9:

2. Freedom to manifest one's 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 for the protection of the rights and freedoms of others.
 Case-law analysis
The position of the European Court of Human Rights concerning the
application of Article 9 and the wearing of religious clothing and symbols
differs significantly according to the interest that has to be put on the other
side of the balancing scale, as well as the context in which the conflicting
interests come into play.

Precisely, the ECHR jurisprudence on the matter can be analysed focusing

on 3 contexts:
1) PUBLIC SPACE 3) SCHOOLS 2) WORKPLACE
 Case law analysis: religious apparel and public
spaces
Ahmet Arslan and Others v. Turkey
Summarising briefly the circumstances of the case: the applicants (all members of a
religious group called Aczimendi tarikaty) complained of their conviction for a breach of the
Turkish law banning the wearing of certain types of religious apparel in public places
outside religious ceremonies.
[The apparel in question consisted in a black turban, black baggy trousers, a black tunic and a baton]
The Court found a violation of Article 9 of the Convention, holding that:
a) The prohibition had been directed NOT at ‘‘PUBLIC SERVANTS’’ (who are required to show
discretion in exercising their duties), but at ORDINARY CITIZENS
b) The manner in which the applicants had manifested their religious belief DID NOT CONSTITUTE
ITSELF a THREAT TO PUBLIC ORDER NOR a MEANS OF EXERTING PRESSURE on others.
[In fact, in reply to the Turkish Government’s argument that the applicants might have been engaging in proselytism, the
Court found no evidence in the case-file to show that they had attempted to exert wrongful pressures on passers-by]
 Case law analysis: religious apparel and
public spaces
S.A.S. v. France
Conversely, the Court found no violation of Article 9 in this case concerning the
enactment of a law penalising the wearing, in public spaces, items of clothing
intended to conceal the face (such as burqa and niqab).
[The penalties consisted in a fine and/or a compulsory citizenship traning.]
In this case, the Court recognised the legitimacy of the argument submitted
by the respondent Government: i.e. that the face played an important role
in human interaction – therefore concealing the face in public spaces was
perceived as a violation of the right of others to live in a space of
socialisation which made living together easier.
Moreover, the Court found that the respondent State had not overstepped its margin of
appreciation, particularly considered the leniency of the penalties incurred.
 Case law analysis: religious apparel in public
spaces and security reasons

A particular attention must be given to the relation between the

right to wear religious clothing and symbols and the protection
of public security in certain specific public spaces (such as
airports or consular premises).

Digging deep into the case study:

 Case law analysis: religious apparel in public
spaces and security reasons
Phull v. France
In this case, the applicant was a practising Sikh, who complained a violation of Article 9 of
the Convention, stating that the airport authorities who had obliged him to remove his
turban as a part of a security check on all passengers entering the departure lounge
interfered with his freedom of religion.
 Instead, the Court stated that:
a) security checks in airports were necessary in the interests of public safety,
within the meaning of Article 9 §2 of the Convention
b) and also, the measures for implementing them fell withing the margin of
appreciation of the respondent State, especially considered that the measure
was very limited in time
So, the Court held that the complain under the Article 9 of the Convention was manifestly
ill-founded and therefore declared the application inadmissible.
 Case law analysis: religious apparel in public
spaces and security reasons
El Morsli v. France
In this case, the applicant – a Moroccan woman married to a French man – was
denied an entry visa to France as she refused to remove her headscarf for an identity
check at the French consulate in Marrakech.
Similarly to the previous example, the Court declared the application
inadmissible for manifest ill-foundedness, stating that the identity check as
part of the security measures served «the legitimate aim of public safety», and
also considered that the applicant’s obligation to remove her headscarf was very
limited in time.
 Case law analysis: religious clothing and
symbols at school
Dogru v. France and Kervanci v. France
In this cases the applicants – both Muslims – attended the first year of a secondary State
school. On numerous occasions they attended P.E. classes wearing their headscarves
(according to Muslim religion) and despite the teacher’s repeated requests to take them off,
they always refused to do so.
Therefore, the school decided at first to not admit the pupils wearing headscarves to P.E.
and sports classes and then, eventually, to exclude them from school for breaching the duty
of assiduity (by failing to participate in those classes).
 The Court stated that there had been no violation of Article 9, recognising the
legitimacy of the conclusion reached by national authorities i.e. that wearing a
veil/headscarf was incompatible with sports classes for reasons of health and
safety.
 The Court also noted that the penalty imposed (exclusion from school) was the legitimate
consequence of the applicants’ refusal to comply with the rules of the school, of which – indeed
– they had been properly informed (and thus not a consequence of the pupils’ religious belief).
 Case law analysis: religious clothing and
symbols at school and university
In another group of cases (Aktas v. France, Bayrak v. France, Gamaleddyn v. France, J.
Singh v. France and R. Singh v. France) six pupils of a state school, who used to wear
conspicuous symbols of religious affiliation, were first denied access to the classroom
(upon their refusal to remove the symbols) and then eventually expelled from school.
Here, the Court declared the applications inadmissible for manifest ill-foundedness,
holding that:
a) The measures adopted by the school was prescribed by law and pursued the
legitimate aim of protecting the rights and freedoms of other pupils, as well
as public order
b) Secondly, the penalty of the expulsion was not disproportionate to the aims
pursued, since the pupils still had the possibility to continue their schooling by
attending correspondance courses or a private religious school.
Background analysis: France’s 2004 ban and
the implications of the principe de laïcité
The two cases we have just focused on have all a common background: in fact, in both
France is the ‘respondent State’ and both the controversies can be traced back to the
very specific legislative context of the country.
First of all, regarding the matter, it’s worth to mention that the principe de laïcité
plays a fundamental role in France’s constitutional system, being mentioned at Article
1 of the 1958 Republican Constitution:
La France est une République indivisible, laïque, démocratique et sociale. […]
It has been noticed by scholars, though, that the concept of laïcité is quite different
from the concept of ‘‘secularism’’, being held that secularism implies the protection of
the freedom of religion whereas laïcité is more concerned about freedom from
religion. (Cristina Gallotto, Religious Symbolism in Public Schools: French Laicite and American Secularism,
Boston University Research, 2013)
Along this line, in 1989 (after the infamous ‘Headscarf Affair’ in Creil, where
three young female students refused to remove their headscarves in the
classroom) French Conseil d’État clarified that the wearing of religious
symbols and clothes in «teaching establishments» in order to manifest ones’
religious affiliation:
is not by itself incompatible with the principle of laïcité, […] but this freedom should
not allow students to sport signs of religious affiliation that would constitute an act of
pressure, provocation, proselytism or propaganda, or would harm the dignity or the
freedom of the student or other members of the educative community.
So, as we can read, the Conseil d’État stated not that wearing religious
symbols was a violation of laïcité itself, but that it might compromise,
essentially, elements of public space that together make for a secular space
(with a subtle difference between the two hypotheses).
Also, in 2004, after the increased media attention upon the matter, France
enacted a law prohibiting the wearing of religious signs or clothes in all
public schools and colleges (Law 2004-228 of 15 March 2004).

Since then, a great number of cases have been filed to high French courts
to petition the law’s legitimacy – and also a number of applications have
been submitted to the ECHR, claiming that French pro-laïcité measures
violate the freedom to manifest one’s religion or belief, protected under
Article 9 of the European Convention on Human Rights (though those
applications have led to very unexpected outcomes).
Case law analysis: religious symbols in State-
school classrooms
Lautsi v. Italy
In this case, the applicant’s children attended a State-school in Abano Terme, Italy, where
all the classrooms had a crucifix hanging on the wall.
The applicant claimed that the display of a religious symbol in a State-school classroom
constituted a violation of Article 9 of the ECHR (freedom of thought, conscience and
religion) and of Article 2 of the Procotol no. 1 to the Convention (right to education).
Initially, the case was decided by a Chamber of the Second Section of the Court, which
declared that – in fact – there had been a violation of Article 9 of the Convention and
Article 2 of the Protocol no. 1.
In particular, the Chamber argued that the “negative” freedom of religion (i.e. the freedom
of not having a particular religion/belief) was not limited to granting the absence of
religious services or religious education, but it also it extended to practices and symbols.
Case law analysis: Lautsi v. Italy
The decision of the Chamber caused a wave of indignation among in Italy (among
politicians, religious circles and also common people)

In 2010, the Italian government lodged an appeal to the Grand Chamber of the
Court, holding that the use of crucifixes in public in Catholic countries reflects the
European Christian tradition and should not be regarded as a restriction on the
freedom of religion.
A large number of Christian-tradition countries expressed their support for Italy's
appeal against the ruling.
 The case was then referred to the Grand Chamber, which eventually
decided to overturn the ruling of the lower Chamber, holding that there had
actually been none of the alleged violations (Article 9 of the ECHR and Article
2 of the Procotol no. 1).
Case law analysis: Lautsi v. Italy
In particular, the Grand Chamber stated that:
a crucifix on a wall is an essentially passive symbol and [...] cannot be deemed
to have an influence on pupils comparable to that of didactic speech or
participation in religious activities.
And also that:
[It] is not in itself sufficient […] to denote a process of indoctrination on the
respondent State's part and establish a breach of the requirements of Article 2
of Protocol No. 1
Case law analysis: religious clothing and
symbols in the workplace
Regarding the third field (the workplace), the individual’s right to
manifest their religion may come into conflict with many other
interests, such as the health and safety of others or the interest of a
private company in projecting a specific commercial image.
Nevertheless these interests, however legitimate, must always be
weighed up against the individual’s right to manifest their religion.
Case law analysis: religious clothing and
symbols in the workplace
An example is given by the case Eweida and Chaplin v. the United Kingdom.
The applicants were respectively a British Airways employee and a geriatric
nurse, and both wore Christian crosses around their neck while at work.
o Ms Eweida was suspended, after refusing to conceal the Christian cross she
wore (whereas symbols of other religions such as hijab were authorised).
In this case, the Court found a violation of Article 9.
In particular, the Court noted that, in the balancing of the interests, the
employee’s right to manifest her religious belief weighed more than the
interest of the company to project a certain corporate image.
Eweida and Chaplin vs the United Kingdom
o Ms Chaplin was transferred to another ward after refusing to either
remove the cross necklace or wear it as a brooch or tucked under her
vest.
In this case, the interest weighing on the scale (on the opposite side of the
right to manifest one’s religion) was the health and safety of the hospital
patients, which might have pulled the chain and thus injured themselves or
the applicant (or also, the chain swinging could have come into contact with
an open wound).
Therefore, the Court found no violation of the Article 9.