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FROM CARTOONS TO CRUCIFIXES:

CURRENT CONTROVERSIES CONCERNING THE
FREEDOM OF RELIGION AND THE FREEDOM OF
EXPRESSION BEFORE THE EUROPEAN COURT OF
HUMAN RIGHTS
Malcolm D. Evans*
INTRODUCTION

During the past five years, issues concerning the freedom of

religion, and its relationship with the freedom of expression have
received an ever higher profile in both the media and in political debate.
The purpose of this article is to reflect on the approach taken by the
European Court of Human Rights to some of the most significant of
these issues. In a short article of this nature it is not possible to examine
each of the issues in a comprehensive fashion, but by juxtaposing
relatively brief overviews of these cases, some general insights
regarding the current mood of the Court and the capacity of the
Convention system to engage with ever more pressing issues will
emerge. The main challenge appears to be the need to reconcile the
Court's emphasis upon neutrality and impartiality, found in its more
recent case law concerning state relations with religious associations,
with the core value of respect, which has long dominated its approach in
other areas. Its failure to address this challenge in an appropriate manner
threatens the Court's ability to engage with emerging problems in a
satisfactory fashion.
I.

FREEDOM OF EXPRESSION AND THE FREEDOM OF RELIGION

In 2006 the publication of a series of cartoons of the Prophet

Mohammed by the Danish Newspaper Jyllands-Posten unleashed an
impassioned debate concerning the propriety of exercising the freedom
of expression in a fashion that seriously offended the religious
sensibilities of others. Why this particular incident attracted quite so
much attention is not clear, but the issue has not gone away, and similar
* Professor of Public International Law, University of Bristol, U.K.

345

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controversies concerning cartoon images of the Prophet continue in

copy-cat fashion.'
The underlying legal issue was hardly novel:
blasphemy laws have long been used to silence--or try to silence-those
who speak ill of the beliefs that those laws seek to protect, while human
rights law has generally championed the case for maximizing the scope
of the freedom of expression. Indeed, in Handyside v. United Kingdom,
one of the foundational cases regarding the scope of the freedom of
expression under Article 10 of the European Convention on Human
Rights, the European Court of Human Rights (the Court) made it clear
that
[f]reedom of expression constitutes one of the essential
foundations of a democratic society, one of the basic conditions for
its progress and for the development of every[one]....

[I]t is

applicable not only to "information" or "ideas" that are favourably

received or regarded as inoffensive or as a matter of indifference,
but also to those that shock, offend or disturb the State or any
sector of the population. Such are the demands of that pluralism,
tolerance and broadmindedness without which there is no
"democratic society." 2
Although the Court has stressed the importance of the freedom of
expression in such clear terms, it has also stressed the significance of the
freedom of religion or belief in similarly strong language. In Kokkinakis
v. Greece, its first substantive judgment relating to the Article 9 of the
ECHR, the Court said
... freedom of thought, conscience and religion is one of the

foundations of a "democratic society" within the meaning of the

Convention. It is, in its religious dimension, one of the most vital
elements that go to make up the identity of believers and their
1. See, e.g., the on-going controversy concerning the publication of another cartoon image
of the Prophet by the Swedish artist Lars Vilks in Sweden in 2007, which led to Al-Qaeda placing
a bounty on him. In 2010, a U.S. woman was indicted for alleged involvement in a plot to kill
him, prompting the reprinting of the image in three Swedish newspapers. See, e.g., Texan 'Jihad
Jane' accused of plot to murder artist who mocked Muhammad, THE TIMES, Mar. 11, 2010,

available at http://www.timesonline.co.uk/tol/news/world/usandamericas/article7057375.ece.
Another high profile issue concerned the short film FITNA made by the right-wing Dutch
politician Geert Wilders. In February 2009, he was invited by some members of the House of
Lords to screen this film in the Palace of Westminster, but this plan was thwarted by his being
refused entry to the country. Following a ruling by the Asylum and Immigration Tribunal in
October 2009, see Netherlands [2009] UKAIT 00050), G.W. and Immigration Officer, Heathrow,
Oct. 20, 2010, http://www.bailii.org/uk/cases/UKIAT/2009/0050.html, the ban on his entry was
lifted and he was finally able to attend a screening of the film in March 2010. See, e.g., Geert
Wilders

to show anti-Koran film in Lords,

THE TIMES,

Mar. 5,

http://www.timesonline.co.uk/tol/news/world/europe/article705O372.ece.
2. Handyside v. U.K., App. No. 5943/72, 24 Eur. Ct. H.R. (ser. A) at

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2010, available at

49 (1976).

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conception of life, but it is also a precious asset for atheists,

agnostics, sceptics and the unconcerned.
The pluralism
indissociable from a democratic society, which has been dearly
won over the centuries, depends on it.3
In consequence, it ought not to come as too much of a surprise that
the Court has been willing to endorse what some consider to be a
surprisingly interventionist approach with forms of expression that may
be offensive to religious believers. Indeed, some of the first cases which
it decided concerning the freedom of religion or belief actually involved
its relationship with the freedom of expression. In these decisions the
Court stressed the need for sensibilities of believers to be properly
respected. In Otto-Preminger-Institutv. Austria, for example, the Court

emphasized that the exercise of the freedom of expression carries with it

"duties and responsibilities," including "an obligation to avoid as far as
possible expressions that are gratuitously offensive to others and thus an
infringement of their rights, and which therefore do not contribute to any
form of public debate capable of furthering progress in human affairs."
On the other hand, the Court has also made it clear that the freedom of
religion or belief cannot be used by individuals or groups to, in effect,
"gag" others from expressing views which run counter to their own or
which they find offensive. As the Court also said in the OttoPreminger-Institutcase, "Those who choose to exercise their freedom of
religion ... cannot reasonably expect to be exempt from all criticism.
They must tolerate and accept the denial by others of their religious
belief and even the propagation by others of doctrines hostile to their
faith."'
While there is no necessary "conflict" between these two
fundamental freedoms, there is obviously a tension that needs to be
resolved on the facts of each case, informed by the common underlying
values that derive from the Convention system more generally. Though
it is certainly possible to critique its various decisions in a more or a less
positive fashion, the basic approach outlined by the Court has
3. Kokkinakis v. Greece, 260-A Eur. Ct. H.R. (ser. A), at 1 31 (1993).
4. Otto-Preminger-Institut v. Austria, 295 Eur. Ct. H.R. (ser. A) (1994), the approach in
which has been followed, and continues to be followed, in numerous subsequent cases. See, e.g.,
Wingrove v. U.K. (No. 17419/90), 1996-V Eur. Ct. H.R., L.A. v. Turk., no. 42571/98, 2005-VIII
Eur. Ct. H.R., and cases cited in note 5 infra.
5. Otto-Preminger-Institut, supra note 4, at 1 47. See, e.g., Giniewski v. Fr. (No. 64016/00),
2006-I Eur. Ct. H.R., (holding that there had been a breach of article 10 in convicting the applicant
for publishing an article claiming that anti-semitic strands in Catholic thought had paved the way
to the Holocaust). In Giniewski, the Court said that, whilst potentially shocking or offensive,
"[t]he article in question [is] not 'gratuitously offensive' or insulting." For a similar approach, see
also Kutlular v. Turk. (No. 73715/01), Eur. Ct. H.R., (2008) (French).

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considerable merit: rather than seek to "prioritize" either the freedom of

religion or belief or the freedom of expression at the expense of the
other, it draws on the idea of reciprocal "respect" and "tolerance." As
the Court put it, "a State may legitimately consider it necessary to take
measures aimed at repressing certain forms of conduct, including the
imparting of information and ideas, judged incompatible with the respect
for the freedom of thought, conscience and religion of others."
But who is to decide what "respect" entails? It can hardly be left to
those who have made the utterances or who have heard, or heard of,
them. A subjective determination of what is or is not respectful would
merely result in a restatement of the claims of the parties who, by
definition, are in dispute over the very issue. Such an approach would
produce a resolution only by reverting to a hierarchical understanding of
the rights at issue: should the Court prioritize respect for my right to say
what I think or your right not to be offended by what I say? Indeed, this
is the very question that must be avoided.
As a result, the Court has-understandably-fallen back on other
tools to determine whether, taking account of the totality of the
circumstances, the boundaries of "respect" and "tolerance" have been
crossed. Bearing in mind the significance of the rights in question, these
will be high thresholds to cross in order to maximize the space for
legitimate debate and content contestation.
The first factor is the Court's objective approach when determining
whether the form of expression in question is one that gives gratuitous
offence. At first sight, this seems to contrast with its approach whether a
particular form of expression is a manifestation of religion or belief for
the purposes of Article 9. The Court has in recent times appeared
reluctant to question the subjective understanding of the person
concerned.' This reluctance is understandable. It is difficult to see on
what basis a Court can determine that a person does not understand an
issue to be of a religious nature if he or she says that for her or him, it is.
However, this does not mean that an applicant's characterization of an
act as a manifestation must be accepted unquestioningly. The Court has
on many occasions endorsed the view of the former European
6. Kokkinakis, supra note 3, at 1 48; Otto-Preminger-Institut v. Austria, 295-A Eur. Ct. H.R.
(ser. A), at 147 (1994).
7. See, for example, Moscow Branch of the Salvation Army v. Russ., (No. 72881/01), 2006XI Eur. Ct. H.R., at T 92, at 1 92 where the Court said that "the freedom of religion ... excludes
any discretion on the part of the state to determine whether religious beliefs or the means used to
express such beliefs are legitimate."
8. See, e.g., Kosteski v. The former Yugoslav Republic of Macedonia, (No. 55170/00), Eur.
Ct. H.R., at 1 39, (2006).

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Commission on Human Rights that the "practice" of religion "does not

cover each act which is motivated or influenced by a religion or belief."9
In other words, the Court retains a degree of flexibility when it comes to
determining the relevance of the opinion of an applicant that his or her
conduct is a manifestation for the purposes of Article 9.
In fact, the Court has rarely found it necessary to distinguish
between acts which are "manifestations" of religion or belief, and so are
protected by Article 9, and those which are merely "motivated" by
religion or belief, and so are not. Nevertheless, the existence of this
distinction is significant since it undercuts the argument that there is any
dissonance between the Court's approach to what "counts" as a
manifestation for the purposes of Article 9 more generally and its
approach to determining whether offense caused by an expression of
views is sufficient to warrant the intervention of the Court in the
interests of tolerance and respect. That there may be offense is not
something which the Court is likely to question: I am entitled to decide
for myself whether or not the words or deeds of another do or do not
cause me offense.
It is, however, for the Court to determine
"objectively" that the offense was caused "gratuitously," that is, in a
fashion that "[does] not contribute to any form of public debate capable
of further progress in human affairs."'o If it is, then it will be considered
to be a "violation of the spirit of tolerance," which may legitimately be
subject to restraint by the State, bearing in mind the margin of
appreciation a State enjoys in determining whether or not to regulate."
In other words, only if there has been "gratuitous offence" is the State
permitted to restrict the freedom of expression in pursuit of a "legitimate
aim." This is a necessary precondition to the determination of whether,
on the facts of the case, the intervention was "necessary in a democratic
society" to protect the rights and freedoms of others. 2
The Court's reservation of the right to determine whether or not the
offense has been "'gratuitous" is a major "control lever" for regulating
the interplay between the freedom of religion and the freedom of
expression. Yet, the exercise of this power seems to be clouded by the
Court's pronouncement that "[t]he respect for the religious feelings of
believers as guaranteed in Article 9 can legitimately be thought to have
been violated by provocative portrayals of objects of religious
veneration; and such provocative portrayals can be regarded as
9. Arrowsmith v. U.K., App. No. 7050/75, 19 Eur. Ct. H.R. (ser. A) at 5, 71 (1978).
10. Otto-Preminger-Institut, supra note 4, at
11. Id. atT47.
12. Id. atT49.

49 (1994).

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,,13

malicious violation of the spirit of tolerance. ...

At first sight, this might suggest that any such "provocative
portrayals"-and this would include, inter alia, cartoons of the
Prophet-do violate the spirit of tolerance and respect. This is not,
however, how the cases have unfolded. The Court's reservation of the
decision whether such portrayals are provocative has prevented an open
invitation to those who feel offended by contested portrayals to "become
provoked." Secondly, and this is a point widely overlooked, even if an
object of religious veneration is portrayed in a provocative fashion, this
only means that the State is pursuing a legitimate aim if it proceeds to
take action against those who provoke others. It does not mean that the
State must proceed or that any action it takes is justified.14 This is clear
from the Otto-Preminger-Institut decision itself-where the Court,
having decided that the portrayals of figures of Christian devotion were
provocative and gratuitous, went on to consider the proportionality of
the Austrian authorities' response: the Court did not assume that any
intervention to limit the freedom of expression would be justified
because it involved a provocative portrayal of an object of religious
veneration.
There are, however, limits to the acceptability of offensive
expression. As the Court noted in the Otto-Preminger-Institutcase, "in
extreme cases the effect of particular methods of opposing or denying
religious beliefs can be such as to inhibit those who hold such beliefs
from exercising their freedom to hold and express them."" This is the
second factor that gives the State reason to restrict the freedom of
expression: to protect the enjoyment of freedom of religion or belief by
others. Indeed, the nature of the expression at issue might remove it
from the scope of the protection offered by the freedom of expression
altogether; just as there are forms of belief or manifestation that do not
"qualify" for protection under Article 9, so are there forms of expression
that fall outside of the protections offered by Article 10.
A clear example of such unprotected expression is some "hate
speech." Unlike the International Covenant on Civil and Political
Rights, which addresses this directly in Article 20(2),16 the European
13. Id. at$ 47.

52 (1996) (emphasis added), the Court said that

14. In Wingrove, supra note 4, at
individuals were under "a duty to avoid as far as possible an expression that is, in regard to objects
of religious veneration, gratuitously offensive to others and profanatory." See also LA., supra
note 4; Murphy v. Ir., (No. 44179/98), 2003-IX. Eur. Ct. H.R. at 1 65. The state, however, does
not appear to be under a duty to respond to such utterances per se.
15. Otto-Preminger-Institut, supra note 4, at 47 (1994).
16. "Any advocacy of national, racial or religious hatred that constitutes incitement to

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351

Convention on Human Rights does so in a rather more oblique fashion.

Article 17 provides that
[n]othing in this Convention may be interpreted as implying for
any State, group or person any right to engage in any activity or
perform any act aimed at the destruction of any of the rights and
freedoms set forth herein or at their limitation to a greater extent
than is provided for in the Convention. 17
In essence, this article seeks to prevent the provisions of the Convention
from being used to undermine essential Convention values. For
example, in the case of Norwood v. the United Kingdom, the Court

found that the display of a poster by a member of an extreme right wing

party that identified Islam with terrorism amounted to a "vehement
attack on a religious group" which was "incompatible with the values
proclaimed and guaranteed by the Convention, notably tolerance, social
peace and non-discrimination."18 As a result, the party did not benefit
from the protection of Article 10 at all.19
Although the Court may still have a "balancing act" to perform in
affording the margin of appreciation where the exercise of the freedom
of religion or belief is imperiled in this way, arguably there is no room
at all for the exercise of State discretion where the very freedom to hold
religious, or other, beliefs is at issue. Such situations are likely to be
rare, and they would require that the expression of others' views be so
overwhelmingly potent in effect as to make it unbearable for some
religion's adherents to continue to hold their beliefs, despite their deepseated wish to do so. Provided that speech critical of religion does not
spill over into forms of hate speech, and is not "gratuitously offensive,"
that such speech forms part of the robust debate characterizes
democratic society and that the Convention seeks to protect.20
discrimination, hostility or violence shall be prohibited by law." International Covenant on Civil
and Political Rights art. 20(2), Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23,
1976). For an important examination of the connections between Articles 19 and 20 of the
ICCPR, see World Conference on Human Rights, Expert seminar on the links between articles 19
and 20 of the International Covenant on Civil and Political Rights (ICCPR): "Freedom of

expression and advocacy of religious hatred that constitutes incitement to discrimination, hostility
or violence" (Geneva, Oct. 2-3, 2008)," UN Doc. A/HRC/10/31/Add.3 (Jan. 16, 2009) and
associated papers, available at www2.ohchr.org/english/issues/opinion/articles 1920 iccpr/.
17. European Convention on Human Rights (ECHR) art. 17, Nov. 4, 1950. For a recent
examination of approaches to Hate Speech under the ECHR, see ANNE WEBER, MANUEL SUR LE
DISCOURSE DE HAtNE (Martinus Nijhoff/Council of Europe 2009) (French).

18. Norwood v. U.K. (dec.), no 2313/03, 2004-XI. Eur. Ct. H.R., Nov. 16, 2004.
19.

Id.

20. None of this, of course, applies to forms of physical expression or threats[?] that prevent
or discourage believers from manifesting their beliefs through worship, teaching, practice and
observance. In such situations, the state must indeed intervene to ensure that the freedom of

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The key points emerging from the Court's approach to the

intersection of the freedom of religion and the freedom of expression are
that both rights are of value and should be enjoyed to the fullest extent
possible without negatively impacting on the enjoyment of the rights of
others. Mutual respect for the rights of others regarding what is said and
how it is said might suggest that restraint would be welcome; but it is
not for the State to restrain unless there is a pressing social need to do
so. The Court's opinions recognize that this decision will fall largely to
the State itself, within the latitudinous boundaries set by the broad
margin of appreciation which it enjoys.
It is, then, something of a mistake to see the Court as overly willing
to justify interventions in order to protect religious believers from forms
of expression that they find distasteful or disrespectful. The Court
legitimates interventions when they are necessary to secure the rights of
those concerned, not when necessary to protect their sensibilities. For
all the controversy surrounding these issues, the approach set out by the
Court in its early judgments on this question seems to work rather well.
It is worth reflecting on whether there are lessons to be learned
from the approaches adopted by the Court in this body of jurisprudence
which might be of relevance for other questions concerning the
enjoyment of the freedom of religion or belief in which the Court's
existing jurisprudence appears to be less successful. We can also
acknowledge developments within this developing jurisprudence that
threaten the balanced approach hitherto in evidence.
II.

RELIGIOUS SYMBOLS AND EDUCATION

There can be little doubt that one of the most contentious issues
raised before the Court in recent times has concerned religious symbols
The Court's emerging approach is
in the educational arena.
characterized by a heightened concern with the potential impact the
presence of religious symbols within an educational environment might
have on perceptions of the impartiality of the State in matters of religion
or belief, rather than with the substantive aspects of the overall
educational experience provided in such an environment.

religion or belief may be secured to all within their jurisdiction. See, e.g., 97 Members of the
Gldani Congregation of Jehovah's Witnesses & Others v. Ga., no. 71156/01, 2007-V Eur. Ct.
H.R.; Ollinger v. Austria, no. 76900/01, 2006-IX Eur. CL H.R.; Sergey Kuznetsov v. Russ., no.
10877/04, Eur. Ct. H.R., (2008).

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A.

353

Headscarves and Religious Clothing.2 1

The judgment of the Grand Chamber of the Court in Leyla Sahin v.

Turkey, which is too well known to require detailed presentation,
suggests that the Court's focus has shifted somewhat from individual
human rights to a concern for State neutrality in religion. In brief, the
Court decided that a ban on headscarves and beards by students in
classes in State-run universities in Turkey served a legitimate aim of
"protecting the rights and freedoms of others and of protecting public
order." 22 The prohibition was considered to be compatible with
Convention values since it was designed to uphold the principle of
secularism which the Court considered "consistent with the values
underpinning the Convention [system]." 23 The Court noted
where the values of pluralism. . . are being taught and applied in
practice, it is understandable that the relevant authorities should
wish to preserve the secular nature of the institution concerned and
so consider it contrary to such values to allow religious attire ...

to be worn. 24

Finally, in one of the most sparsely reasoned sections of the judgment,

the Court decided that the restrictions were proportionate to the aim
pursued and so did not violate Article 9.25
The principles outlined in the Leyla Sahin judgment have been
affirmed in subsequent decisions of the Court. 26 The basic approach
taken by the Court to prohibitions on religious clothing in public
institutions remains relatively unquestioned, although the paucity of
reasoning regarding the proportionality issue is a point of weakness in
the case. The gist of this approach is that State restrictions that uphold
basic principles of the polity and also reflect and support the core values
of the Convention system are permissible. In some sense, there ought
21. A substantial literature has developed around these themes. See, in particular,Tom
Lewis, What not to Wear: Religious Rights, The European Court, and the Margin ofAppreciation,
56 INT'L & CoMP. L. Q. 395 (2007). For more general examinations of the issues involved from a
legal and human rights perspective, see DOMINICK MCGOLDRICK, HUMAN RIGHTS AND
RELIGION: THE ISLAMIC HEADSCARF DEBATE IN EUROPE (Hart Publg 2006); MALCOLM D.
EVANS, MANUAL ON THE WEARING OF RELIGIOUS SYMBOLS IN PUBLIC AREAS (Martinus
Nijhoff/Council Eur. Publishers 2009). For a recent series of questioning reflections, see MARNIA
LAZREG, QUESTIONING THE VEIL: OPEN LETTERS TO MUSLIM WOMEN (Princeton Univ. Press
2009).
22. Leyla Sahin v. Turk. [GC] (No. 44774/98, 2005-XI Eur. Ct. H.R., at $ 99 (a point agreed
on by the parties)).
23. Id.atJ114.
24. Id. at 116.
25. Id at 117-23.

26. See, e.g., Kurtulmus v. Turk. (dec.) (No 65500/01), 2006-II Eur. Ct. H.R.; Dogru v. Fr.,
(No. 27058/05), Eur. Ct. H.R., (2008); Kervanci v. Fr., (No. 31645/04), Eur. Ct. H.R., (2008).

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not to have been too great a surprise at the outcome in Leyla Sahin and
subsequent cases on this issue. These themes were sounded before in
the case of Dahlab v. Switzerland, in which the Court rejected a claim
by a primary school teacher dismissed for wearing a headscarf while
teaching.27
In both cases, two complementary reasons are given for upholding
the restriction, though the relative weight accorded each is rather
different. In Dahlab, in addition to recognizing the importance of
maintaining the denominational neutrality of the School, the Court also
stressed that the wearing of a headscarf "might have some kind of
proselytising effect." 28 For this reason, the Court decided that it would
be "difficult to reconcile the wearing of an Islamic headscarf with the
message of tolerance, respect for others and, above all, equality and nondiscrimination that all teachers in a democratic society must convey to
their pupils." 29
The Grand Chamber in Leyla 3ahin also recognized proselytizing
as a concern, and expressly agreed with the Chamber that "there must be
borne in mind the impact which wearing such a symbol, which is
presented or perceived as a compulsory religious duty, may have on
those who choose not to wear it .. . in a country in which the majority of
the population .... adhere to the Islamic faith." 30 The Court found that
the ban furthered the legitimate aims of protecting the rights and
freedoms of others and maintaining public order.31 This decision was
powerfully influenced by the earlier judgment of the Grand Chamber of
the Court in Refah Partisiv. Turkey, which upheld the right of the State
to ban a political party whose platform included the introduction of
elements of Shari'alaw into Turkey.32
By contrast to Dahlab, where the main focus seems to have been
on the possibility that the teacher might proselytize her pupils, in Leyla
27. Dahlab v. Switz. (dec.) (No. 42393/98), 2001-V Eur. Ct. H.R.
28. Id. at 13.
29. Id.

30. Leyla

Sahin, supra note 22,

at $ 115 and see also the Judgment of the Chamber,

107-

09.
31. Id. (2004).
32. See, in particular, Refah Partisi (the Welfare Party) and Others v. Turk. [GC], (Nos.
41340/98, 41342/98, 41343/98 & 41344/98), 2003-Il Eur. Ct. H.R., at 1 125 where the Court
observed that
When the former theocratic regime was dismantled and the republican regime was being
set up, Turkey opted for a form of secularism which confined Islam and other religions
to the sphere of private religious practice. Mindful of the importance for survival of the
democratic regime of ensuring respect for the principle of secularism in Turkey, the
Court considers that the Constitutional Court was justified in holding that Refah's policy
of establishing sharia was incompatible with democracy.

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Sahin,

the main focus of attention was on the potential political

consequences of permitting religiously inspired clothing to be worn
within the institutions of a secular State. Although the decision may
have been driven by the context of the case, i.e. the history of conflict
over secularism in Turkey, it also picks up on a complementary strand of
reasoning within the judgments of the Court, which will be considered in
more detail later.
For now, it seems sufficient to observe that the Court's focus has
shifted away from the impact that a specific headscarf may have on
these pupils in a school of this nature (Dahlab) to the impact that the
presence of religious clothing or symbols may have for the generic
perception of the neutrality of the State in religious matters (Leyla
5ahin). In matters relating to religious symbolism in the public realm,
the Court's understanding of the State, rather than the impact of its
approach on the rights of the individuals in question, appears to have
taken center stage.
B.

Lautsi v. Italy

The European Court's focus on what might be called the "overall"

impact of religious symbols in public life is also evident in the first
issues to have come before the Convention system-involving the
presence of religious symbols in classrooms in State-run schools. Once
again, similar controversies have arisen with domestic jurisdictions,
perhaps the most well known being the cases on the presence of
crucifixes in schools in Bavaria.
Because these cases were largely resolved at the domestic level,
they did not come before the European Court until the case of Lautsi v.
Italy.3 4 As ever, the background to the case is a little more complex than
it might at first seem since the challenged provisions date from the
1920s and had been promulgated under the Fascist dictatorship.3 6 Thus,
for some, the presence of crucifixes in classrooms conveyed a political
as well as (or, indeed, rather than) a religious connotation and doubtless
formed an element in the public response to the decision.

33. See the Classroom Crucifix II Case, Bundesverfassungsgericht [BVerfG] [German

Federal Constitutional Court] Oct. 8, 1995, 93 Entscheidungen des Bundesverfassungsgerichts
[BVerfGE] I (F.R.G.).
34. Lausti v. Italy (No. 30814/06), Eur. Ct. H.R., (2009).
35. The relevant provisions took the form of regulations which were not legal in nature, and
so not susceptible to the jurisdiction of the Italian Constitutional Court. See id. at i1 12 & 26.
36. This merely affirmed earlier provisions applicable to the region dating back to 1860 and
thus pre-dating the unification of Italy.

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In Lautsi, the central issue was whether the presence of a crucifix

in an Italian State school classroom breached the right of a parent to
have her children (who were between eleven and thirteen) to be
educated in accordance with her religious or philosophical convictions, a
right provided for in Article 2 of the First Protocol to the ECHR, in
conjunction with Article 9.
The Government advanced the rather far-fetched argument that the
cross,3 7 while religious in origins, had in context taken on additional
symbolic significance which eclipsed the religious. Because it also
conveyed more generally shared values, such as human dignity, justice,
the love of one's neighbor and the forgiveness of enemies," the
Government argued that "[t]he message of the cross was therefore a
humanist message which could be read independently of its religious
dimension and was composed of a set of principles and values forming
the foundations of our democracies."3 9 Carried away by the force of its
own rhetoric, the Government went as far as to suggest that "as the
symbol of the cross could be perceived as devoid of religious
significance, its display in a public place did not in itself constitute an
infringement of the rights and freedoms guaranteed by the Convention.40
As such, the Government claimed the presence of a cross in a classroom
"was perfectly compatible with secularism and accessible to nonChristians and non-believers, who could accept it in so far as it evoked
the distant origin of the principles and values concerned."'4 Far-fetched
though they may seem, these arguments merely mirrored the reasoning
offered by the domestic Courts when they rejected the claims of the
applicants.42
The arguments advanced by the Government seem more or less to
accept that the presence of the cross, if understood as a religious symbol,
would breach the rights of the applicant and so went out of its way to
suggest that it was not to be understood in religious terms at all. In
essence then, the Government appeared to have accepted that the State
education system had to be "neutral" in matters of religion or belief, so
37. Interestingly, "cross" and "crucifix" seem to be used as if they were one and the same in
the judgment. Whilst a non-religious (or secondarily religious) meaning might conceivably be
attached to a cross, it would seem much more difficult to argue than a crucifix was predominantly
non-religious in nature.
38. For a full list, see 1 35 of the judgment.
39. Id. at$35.
40. Id. One might wonder what the Church might think of this, but this is hardly relevant to
the human rights claim.
41. Id. at 35.
42. Id. at 1113 & 15.

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that it had to trivialize the significance of this most potent of Christian

religious symbols, thereby potentially causing at least as much offense
to devout Catholic believers in Italy as the presence of the crosses
appears to have caused the applicant.
In the alternative, perhaps anticipating the Court's response that
"the symbol of the crucifix has a number of meanings among which the
religious meaning is predominant," 3 which few would seriously contest,
the Government argued that if the cross were to be considered a
religious symbol, then it should be remembered that "teachers and pupils
were not required to make the slightest gesture which might constitute a
salutation or mark of respect to it or a mere acknowledgment of its
presence, and still less to say prayers in class. . ." "In fact, they were not
asked to pay any attention to the crucifix whatsoever."" Once again,
this is a rather self-defeating argument: if the crosses are of no
significance, why should there be any objection to their being taken
away? As far as the Court was concerned, however, it was "impossible
not to notice crucifixes in the classroom" and in consequence ". . . they
are necessarily perceived as an integral part of the school environment
and may therefore be considered 'powerful external symbols. "4'
In light of this contorted logic, which made it almost impossible for
the European Court to have done anything but find for the applicant, the
really important question of what context the Court should consider in
looking at state neutrality toward religion appears to have gone
In the final paragraph of its judgment, the Court
unaddressed.
concluded that
the compulsory display of a symbol of a particular faith in the
exercise of public authority in relation to specific situations subject
to governmental supervision, particularly in classrooms, restricts
the right of parents to educate their children in conformity with
their convictions and the right of schoolchildren to believe or not
believe.46 It is of the opinion that the practice infringes those
rights because the restrictions are incompatible with the State's
duty to respect neutrality in the exercise of public authority,
particularly in the field of education.47
43. Id. at

151.

44. Id at 36.
45.

Id. at

54.

46. Id. at 1 57. The Court may have overstepped its jurisdiction when determining that the
rights of the schoolchildren "to believe or not believe" had been restricted since this was not,
strictly speaking, at issue. Although the applicant appears to have brought a claim in her own
name for a violation of Article 9, this does not appear to have been.
47. Id.

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The Court's approach combines an unproven factual assertion

about harm with a logical non-sequitur to produce a significant-and
problematic-conclusion. The Court's factual assertion is that the
display of a faith symbol, without more, restricts rights of parents under
Article 2 of the first protocol.
The Government did attempt
unsuccessfully to question this assumption, arguing that the threshold
for interference with Article 2 rights had not been met since "education
in Italy was entirely secular and pluralistic, school syllabuses contained
no allusion to a particular religion and religious instruction was
optional." The Government noted that, "however great its evocative
force, an image was not comparable with the impact of an active, daily
conduct extending over a long period such as teaching."48
This interesting and important argument claims that an Article 2
inquiry should take into consideration the entire educational experience
when determining whether the proper respect has been given to the
religious or philosophical convictions of the parents, not simply look at
whether there are or are not isolated signs or symbols which speak of
religion. It claimed, in essence, that the Court should review the
"totality of the offering" and the physical environment, including the
presence of symbols, religious or otherwise, and that religious symbols,
while undoubtedly a factor, are only one factor to be taken into account
when making the assessment that there has been a breach.
The Government's approach would certainly appear to resonate
with earlier case law concerning Article 2 of the first protocol. Indeed,
the Italian Government did refer to the Danish Sex Education cases in
support of its position.4 9 It also resonates with more recent judgments
such as Folgero v. Norwayso and Zengin v. Turkey,

which both took a

more fully contextual approach to the educational experience of the

pupils as a whole, rather than focusing on a single aspect of that
experience. Nevertheless, the Court did not really engage this claim at
all. Rather, it accepted that there were cogent grounds for the
applicant's belief that the "display of the crucifix was a sign that the
State takes the side of Catholicism.,, 52
The Court further expressed the view that "[t]he presence of the
crucifix may easily be interpreted by pupils of all ages as a religious
48. Id. at T 36-37.
49. Id. at 37, referring to the Judgment of the Court in Kjeldsen, Busk Madsen and
Pedersen,23 Eur. Ct. H.R. (ser. A) (1976).
50. Folgero & Others v. Nor. [GC] (No. 15472/02), ECHR 2007-VII Eur. Ct. H.R.
51. Hasan & Eylem Zengin v. Turk., (No. 1448/04), ECHR 2007-XI Eur. Ct. H.R., at 163.
52. Lausti v. Italy, supranote 34, at 153.

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sign, and they will feel that they have been brought up in a school
environment marked by a particular religion."5 This may well be so,
but it does not mean that they are receiving an education that does not
respect the religious or philosophical beliefs of the parent. While such a
symbol may be an inhibiting factor, the presence of the symbol does not
in and of itself convert a balanced education into a religiously biased
one. The Court's approach fails to take into account other elements of
the educational experience that may be on the whole secular.
A non-sequitur follows the Court's assertion: the rights of parents
are infringed because the mere presence of a crucifix is "incompatible
with the State's duty to respect neutrality in the exercise of public
authority, particularly in the field of education." It may well be the case
that the State is under a duty of neutrality in the field of education, but
this does not flow from Article 2 of the first protocol to the ECHR,
under which the parent has the right to ensure that regard is paid to his
or her religious or philosophical convictions. But in case after case, the
Court has made it clear that this does not mean the parent has a right to
ensure that the educational curriculum only includes material that
accords with his or her pattern of belief.5 4 Indeed, such a reading would
seriously distort that Article: in their ordinary and natural meaning, the
words of the Article suggest that it should indeed be possible for
education to be of a religious hue if that is what the parent wishes. Yet
the Court seems to see it as meaning just the opposite: if there is any
color of religion within the educational experience, then this falls foul of
the State's duty of neutrality.
The Court's focus on neutrality obscures the fact that religious
rights may be at stake on both sides of such a controversy. The Court
seems to think that respect for parental wishes is "unidirectional" when
it says that "[t]he display of one or more religious symbols cannot be
justified either by the wishes of other parents who want to see a religious
form of education in conformity with their convictions or, as the
Government submitted, by the need for a compromise with political
parties of Christian inspiration." 5 Or, as the Court puts it, ""Respect for
parents' convictions with regard to education must take into account
respect for the convictions of other parents" 56 -provided, it seems, that
53. Id. at 55.
54. This was made clear in the first case to address this question, Kjeldsen, Busk Madsen and
Pedersen v. Den., supra note 49, at 53) and has been more recently reaffinned in the leading
restatement of the Court's approach to this in Folgero, supra note 50, at 78(g).
55. Id. at
56. Id. at

56.
57.

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the conflicting convictions are not religious in nature. In the Court's

view of Article 2, a non-religious environment that is in fact critical
about religious claims can be imposed upon the children of believers,
but a religious environment may not be imposed on those of a nonreligious disposition.
This holding is, of course, hugely problematic in practice in a
Europe where much of the State education system is in fact delivered
through religiously oriented schools, or schools that have a rich and
significant religious heritage, with trappings that are still evident today.
Moreover, the Court states that, as a principle of general application,
It is on to the fundamental right to education that is grafted the
right of parents to respect for their religious and philosophical
convictions, and the first sentence does not distinguish, any more
than the second, between State and private teaching. The second
sentence of Article 2 of Protocol No. 1 aims at safeguarding the
possibility of pluralism in education which possibility is essential
for the preservation of the "democratic society" as conceived by
the Convention.51
Although the Court goes on to say that "[i]n view of the power of the
modem State, it is above all through State teaching that this aim must be
realised,"" the Court thereby suggests the possibility that all forms of
education-state or private-must not only be "neutral in content" but
also "neutral in context" under the Convention, something which would
exacerbate considerably the problems posed by the judgment.
At the end of the day, it is difficult to avoid the conclusion that the
judgment is less about the infringement of Ms. Lautsi's First Protocol
Article 2 rights and more about ensuring the neutrality of the public
space in matters of religion-not only in the sense of ensuring that the
State exercises its powers in a manner which is religiously even-handed,
but in the sense of cleansing public spaces of the traces of religion
because such traces conflict with the rights of the non-religious. This
approach speaks of a paranoia about religion and its influence, rather
than a celebration of religion as "one of the foundations of a 'democratic
society' within the meaning of the Convention."59 As expected, the
Chamber's judgment in Lautsi has now been referred to the Grand
Chamber of the Court at the request of the Italian Government,60 which
57.

Id. at I 47(b).

58. Id.
59. Kokkinakis, supra note 3, at 1 31.

60. The request to refer was accepted by a panel of the Grand Chamber in March 2010. See
Press Release No. 177 (Mar. 2, 2010).

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Whether the Grand Chamber does

hopes that it will be reversed.'
reverse the Chamber's judgment may largely depend on whether it is
willing to depart from the dominant emphasis in its more recent
jurisprudence on State neutrality in matters of religion in general and in
the educational context in particular.
III. CONTROVERSIES TO COME?
A.

The Swiss Minaret Referendum

Another controversy that raises questions regarding State neutrality

is the aftermath of the referendum conducted in Switzerland in
November 2009 concerning the construction of minarets. The origins of
this controversy lie in an application made in 2005 by an Islamic cultural
center in Wangen bei Oltan to erect a six meter tall minaret on its
building. Despite opposition from local residents, which culminated in
challenges before the Swiss Federal Supreme Court, permission was
granted and the minaret was subsequently erected. During the legal
challenges to its construction, center-right politicians sought to introduce
prohibitions on constructing minarets within a number of Swiss
Cantons, but these initiatives all failed on the grounds that such bans
would be unconstitutional. In 2007, the parties moved the campaign up
a level and sought to amend the Constitution itself by inserting a
prohibition on the construction of minarets. Having garnered the
requisite degree of popular support,62 the referendum was held in
November 2009 and, to public surprise, the amendment was approved
by a comfortable margin.63
The very fact that the referendum was scheduled had already been
raised by the UN Human Rights Committee in its list of issues to be
taken up during its consideration of Switzerland's third period report,
which took place in October 2009." In their written replies, submitted
61. Hearings before the Grand Chamber commenced on June 30, 2010. See Press Release
No. 531 (June 30, 2010).
62. A federal referendum may be called if supported by more than 100,000 petitioners. See
Swiss Federal Constitution, Art. 139.
63. The amendment was supported by 57.5% of the voters (turn out being 57.3%). In
addition, only 4 of the 23 Cantons voted against the ban, this being important as to be approved
the amendment needed to attract not only a majority vote but also to be supported by the majority
of the Cantons. The four Cantons which opposed the amendment were Geneva, Vaud and
Neuchatel (all French-speaking) and Basel-City (strictly speaking, a half-Canton for these
purposes). In general the amendment received strongest support in the more rural Cantons but as
the overall result shows, general support existed throughout much of the country.
64. See United Nations Human Rights Committee, Mar. 16-Apr. 3, 2009, List ofIssues to be
Taken up in Connection with the Consideration of the Third Periodic Review of Switzerland,

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before the referendum, the Swiss authorities had observed that the
Federal Council itself considered such a prohibition to violate the
freedom of religion and to be discriminatory. It was, then, no surprise
that in its Concluding Observations, the Committee was "concerned
about the referendum initiative aimed at prohibiting the construction of
minarets ... which, if adopted, would bring the State party into noncompliance with its obligations under the Covenant. (arts. 2, 18, 20)."66
In light of this statement, it was also no surprise that the
referendum outcome was swiftly and widely condemned from many
quarters, and particularly by international human rights bodies. The UN
Special Rapporteur denounced it,67 as did the UN High Commissioner
for Human Rights 68 and the Director of the OSCE Office for Democratic
Institutions and Human Rights. Condemnation also came from within
the Council of Europe, including the President of the Parliamentary
Assembly. 70 In many ways, however, one of the most interesting
responses was the short statement by the Secretary General of the
CCPR/C/CHE/Q/3, question 19 (May 20, 1009).
65. See Replies of the Government of Switzerland to the list of issues (CCPR/C/CHE/Q/3) to
be taken up in connection with the consideration of the third periodic report of Switzerland
(CCPR/C/CHE/3), CCPR/C/CHE/Q/3/Add. 1, 154-60 at 154 (Aug. 10, 2009). It also noted that
under the Federal Constitution, only those referenda proposals which violated norms of jus cogens
could be rejected, and it took the view that this was not the case in this instance.
66. See CCPR/C/CHE/CO/3, 8.
67. See Press Release, Special Rapporteur on Freedom of Religion or Belief, Switzerland:
UN expert on religious freedom regrets outcome of vote to ban construction of minarets, (Nov. 30,
2009),
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewslD=9649&Lang
ID=E. Her statement expressed the view that "A ban on minarets amounts to an undue restriction
of the freedom to manifest one's religion and constitutes a clear discrimination against members
of the Muslim communities in Switzerland."
68. See Press Release, Office of the High Commissioner for Human Rights, Swiss law
banning minarets "clearly discriminatory"-UN human rights chief, (Dec. 1, 2010,
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewslD=9651&LanglD=E.
The High Commissioner described it as "discriminatory, deeply divisive and a thoroughly
unfortunate step for Switzerland to take, and risks putting the country on a collision course with its
international human rights obligations." Interestingly, the High Commissioner focuses on
discrimination in her statement and little mention is made of the freedom of religion or belief.
69. See Press Release, Organization for Security and Cooperation in Europe-Office for
Democratic Institutions and Human Rights (OSCE-ODIHR), (Nov. 30, 2009), available at
www.osce.org/odihr/itemI_41650.html. by Ambassador Lenarcic, with the endorsement of the
OSCE-ODIHR Advisory Council on Freedom of Religion or Belief, said that "A blanket
prohibition of minarets is not consistent with OSCE commitments on freedom of religion or belief
and the principle of non-discrimination based on religion."
70. The President, M. Maria de Puig, said that "The result of this referendum goes against the
values of tolerance, dialogue and respect for other people's beliefs which the Council of Europe
and its Parliamentary Assembly have always upheld. Press Release, President of the
Parliamentary Assembly of the Council of Europe (PACE), Minarets in Switzerland-reaction of
PACE President, (Nov. 30, 2009), www.assembly.coe.int/ASP/Press/StopPressView.
asp?ID=2266.

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Council of Europe, Thorbjorn Jagland:

Bearing in mind that it is a fundamental right of democratic States
to debate and vote on issues of importance to their societies, the
referendum held yesterday on the construction of new minarets in
Switzerland raises concerns as to whether fundamental rights of
individuals, protected by international treaties, should be subject to
popular votes. The ban on the construction of new minarets is
linked to issues such as freedom of expression, freedom of religion
and prohibition of discrimination guaranteed by the European
Convention on Human Rights. Therefore it would be up to the
European Court of Human Rights to decide, should an application
be submitted to the Court, whether the prohibition of building new
minarets is compatible with the Convention.7 1
Jagland's seemingly open invitation to challenge the prohibition
was swiftly accepted, and in December 2009 a number of applications
were submitted to the European Court and then transmitted to the Swiss
authorities for their comments in May 2010.72
It remains to be seen whether the Court will act as commonly
assumed and declare the prohibition in violation of the European
Convention. The Court's decision in Lautsi v. Italy is a potential hurdle.
The dilemma the Court faces is not so much a legal difficulty as a
problem of public and political perception. From a legal standpoint, it is
easy to see that an absolute prohibition on the construction of minarets
would be difficult-if not impossible-to reconcile with an evenhanded, non-discriminatory and neutral approach to the regulation of the
design and construction of places of worship. It is also easy to see that
neutrality and even-handedness may call for the removal of crucifixes
from classrooms. It is less easy to see how the Court would escape the
ire of many Europeans if it told the Swiss that they cannot say "no" to
the presence of minarets while at the same time telling the Italians that
they cannot say "yes" to the presence of crosses and crucifixes in
schools-no matter how justifiable or readily distinguishable the
decisions may be as a matter of law-and both in the name of State
neutrality and the promotion of tolerance and pluralism. Something may

71. Press Release 901(2009), Secretary General of Council of Europe, Concern about
referendum on minarets (Nov. 30, 2009).
72. See App No. 65840/09, Ouardiri v. Switz., (submitted Dec. 15, 2009),
http://cmiskp.echr.coe.int/tkpl97/view.asp?action=html&documentld=868335&portal=hbkm&so
urce=externalbydocnumber&table=F69A27FD8FB86142BF01C1I66DEA398649 and App No.
66274/09, L'association 'Ligue Des Musulmans De Suisse' & others v. Switz., (submitted Dec.
16, 2009), http://cmiskp.echr.coe.int/tkpl97/view.asp?action=html&documentId=868334&portal=
hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BFO1C1 166DEA398649.

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just have to give.

B.

Religious Clothing in Public Spaces

In an odd coincidence after the controversy surrounding the

Minaret referendum, the next significant case to come before the Court
shifted attention back to the wearing of religious clothing, not this time
in public institutions such as schools or hospitals, or even at private
workplaces,7 but just "in public." This issue has emerged as a pressing
concern in light of proposals in a number of European countries to
prohibit the wearing of the burqa and other forms of full facial covering
in public. In June 2009, the President of France said, "The burqa is not a
sign of religion, it is a sign of subservience. It will not be welcome on
the territory of the French republic." 74 The following day the French
National Assembly established an Inquiry to consider whether the
wearing of the burqa posed a challenge to the secular nature of France.
The French Commission issued the Gerin Report in January 2010,
and although its recommendations fell short of a complete ban on
burqas and similar full facial covering in all public places, it did
recommend a much wider prohibition than might have been expected.
The Report argued that "[t]he wearing of the full veil is a challenge to
our republic. This is unacceptable. We must condemn this excess." It
went on to recommend that such garb should be completely prohibited
in public places such as hospitals and schools and also on public
transport, not only by state employees but by all members of the public
who seek to use these public services. Though the Report fell short of
banning burqas from being worn on the street, the practical result of
implementing the Report's recommendation would be that those wishing
73. At the domestic level, wearing religious clothing and religious symbols in such situations
has of course continued to cause controversy. The latest foray of the England and Wales Court of
Appeal into this area was Eweida v British Airways, [2010] EWCA Civ 80 (Eng.), concerning a
member of the airline check-in staff who was not permitted to wear a small cross with her
uniform. An employment tribunal rejected the argument that this was in breach of Article 9, a
view upheld by the Court of Appeal which said that "the jurisprudence on Article 9 does nothing
to advance the claimant's case," quoting the European Court's judgment in Kalac v. Turkey (No.
20704/92), 1997-IV Eur. Ct. H.R., http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal+
hbkm&action=html&highlight=20704/92&sessionid=54846827&skin=hudoc-en, which is now
significantly undermined by the more recent jurisprudence on religious clothing and symbols
which were not considered. It is highly likely that this will be appealed to the U.K. Supreme
Court and, if necessary, taken to the European Court, though it should be noted that the ground of
appeal did not concern the applicability of Article 9 as such but whether there had been indirect
discrimination.
74. See Peter Allen, Nicolas Sarkozy says the burqa is 'not welcome' in France, THE

TELEGRAPH, June 22, 2009, available at http://www.telegraph.co.uk/news/worldnews/europe/

france/5603859/Nicolas-Sarkozy-says-the-burqa-is-not-welcome-in-France.html.

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to access public services-or, indeed, who are required to do so-would

be forced to abandon their religiously-inspired clothing to take
advantage of these public services.
The legislative response to the Report went further, however, and
in July 2010 the lower chamber of the legislature approved by 336 votes
to 1 a complete ban on wearing a burqa or niqab in public.7 ' Although
this is expected to be endorsed by the Senate, it will in all probability be
subject to a constitutional challenge, which many commentators expect
would succeed. Others have followed a similar path. For example, in
April the Belgium lower house of parliament approved a ban on wearing
clothing that hides one's identity in public-understood as banning
burqas in public places-and Senate ratification is expected soon. In
Spain, the municipality of Barcelona has introduced a ban on full face
coverings that hinder identification in municipal buildings (very much
along the lines outlined in the Gerin Report) but not "in the street."7 7 A
similar ban is supported by the Spanish Government and is likely to be
considered in the autumn of 2010, though a more general measure,
which aimed at restricting the wearing in public of full face coverings
revealing only the eyes, was rejected by the Spanish Congress of
Deputies in a close vote on 20th July 2010.78 In the UK, a private
members bill entitled the "Face Coverings (Regulation) Bill" was
introduced and received its first reading before the House of Commons
in June 2010,79 though it lacks Government support and is unlikely to
proceed.
Though couched in other language, and justified on other bases,
such burqa bans seem not so much intended to preserve the impartiality
or neutrality of the State but to stigmatize and penalize those who
choose to manifest their beliefs through forms of religiously inspired
clothing that others feel do not accord with their cultural traditions,
religious or otherwise. Doubtless, should such proposals be converted
into legislation-and there is every reason to believe that they will-this
matter will inevitably come before the European Court of Human
Rights. Without a doubt, the wearing of religious clothing is considered
a manifestation of religion or belief by the European Court;80 such bans
75. See news report at http://edition.cnn.com/2010/WORLD/europe/07/13/france.burqa.ban/
index.html#fbid=ll0ANC2ci6n.
76. See news report at http://news.bbc.co.uk/1/hilworld/europe/8652861.stm.
77. See news report at http://www.bbc.co.uk/news/10316696.
78. See http://jurist.org/paperchase/2010/07/spain-lower-house-rejects-proposal-to-ban-burqa.
php. The vote was 183 to 162 against, with 2 abstentions.
79. See Hansard, June 30, 2010, Column 867.
80. See, e.g., Moscow Branch of the Salvation Army, supra note 7.

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can only be justified if there is in Convention language, a "pressing

social need" with restrictions proportionate to that need.
Will the restrictions succeed under that standard? The case law to
date has been very forgiving of restrictions placed upon public servants
and, since Leyla Sahin v. Turkey, on those attending State-run
educational establishments, since the Court sees the need for restrictions
in order to preserve these institutions' secular ethos. The Court has even
gone as far as to suggest that those who insist on wearing religious garb
might in some circumstances be denied access to some publicly
administered services." Whether it would be so forgiving of bans
transparently intended to stigmatize and penalize individuals who wish
to adhere to their religious traditions remains to be seen.8 2
The recent case of Ahmet Arslan v. Turkey," however, does point

to the outer limits of any such general ban, and may be instructive,
though hardly determinative of any such challenge to those who seek to
"ban the burqa." Ahmet Arslan was one of 127 members of a religious
group that gathered in Ankara in 1996 to attend a religious ceremony
and to walk through the city carrying sticks and wearing their religious
dress: a turban, baggy trousers and a tunic. The members of the group
were arrested and eventually convicted under provisions of Turkish law
prohibiting wearing religious clothing in public other than for the
purposes of religious ceremonies.
In Ahmet Arslan, the European Court once again confirmed that
wearing religious clothing was a manifestation of religion and that the
wearer himself should subjectively determine whether or not clothing
81. See, e.g., Dogru v. Fr., supra note 26, at 64, where the Court said that
Nor does the regulation of student dress or the refusal to provide administrative services,
such as issuing a diploma, constitute a disproportionate interference where the individual
concerned fails to comply with the rules (in the case in point requiring a student wearing
the Islamic headscarf to appear with her head uncovered on a passport photo), regard
being had to the requirements of the secular university system.
82. In June 2010 the Parliamentary Assembly of the Concil of Europe addressed this issue in
Resolution 1753 (2010) and Recommendation 1927(2010) on "Islam, Islamism and Islamaphobia
in Europe." Recommendation para 3.13 asks that the Committee of Ministers
call on member states not to establish a general ban of the full veiling or other religious
or special clothing, but to protect women from all physical and psychological duress as
well as their free choice to wear religious or special clothing and ensure equal
opportunities for Muslim women to participate in public life and pursue education and
professional activities; legal restrictions on this freedom may be justified where
necessary in a democratic society, in particular for security purposes or where public or
professional functions of individuals require their religious neutrality or that their face
can be seen.
It remains to be seen how the Committee of Ministers responds to this request.
83. Ahmet Arslan & Others v. Turk., (No. 41135/98), Eur. Ct. H.R., (2010) (French). This
case was lodged with the Court in 1997, nearly 13 years before the judgment was given.

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was of religious significance.84 Following these assumptions, it was

then incontestable that the Turkish government had interfered with the
sect's freedom of religion or belief, and that the interference had a basis
in Turkish law. Although it did not examine the matter in much depth,
the Court was also prepared to accept that the restrictions pursued the
legitimate aim of protecting public safety, public order, and the rights
and freedoms of others," given the significance of secularism to
democracy in Turkey. Thus the key question became the "necessity" of
the intervention on the facts of the case.
It seems fair to say that the Court "hedged its bets" in the Ahmet
Arslan case.
It distinguished its decisions in Leyla Sahin and
Kurtulmus,16 pointing out that they were based on the need to uphold the
principle of secularism by ensuring the neutrality of State institutions.
In this very different situation, the applicants had been convicted merely
for wearing their religious clothing in public. This analysis seems to
suggest that the Court might object in principle to generalized
restrictions on wearing religious clothing in public spaces-but it held
back from doing so. Rather, the Court focused on the fact that the
Turkish Court had not provided any reason for the conviction, other than
that wearing religious clothing was unlawful; thus, in Convention terms,
the necessity of the conviction was not convincingly demonstrated.88
The European Court notes that there was no evidence that the group's
public display posed any threat to public safety or public order or that
they had been involved in inappropriate proselytism of passersby.
Significantly, the Court noted that the authorities understood the
religious movement and its clothing to be more of a "curiosity" than as
something that projected religious power or claims to authority, as
understood by the State.
In short, the European Court's judgment
suggests that the group posed no particular threat to anyone or anything;
and under these circumstances, more would be required of the State than
merely restating the legal basis for its actions.
The Ahmat Arslan judgment provides a clear line in the sand
regarding the States' "duty of neutrality": the arguments supporting
prohibitions on religious clothing and symbols worn or experienced by
government officials and schoolchildren do not extend to private citizens
84.
85.
86.
87.
88.
89.

Id. at 135.
Id. at 43.
Kurtulmus, supra note 26.
Id. at 49.
Id. at1 53.
Id. at1 51.

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in public space generally. At the same time, where the State presents
good grounds for regulation, even prohibitions as extensive as those
proposed by the Gerin Report might not be incompatible with the
European Convention on Human Rights if they are firmly rooted in the
need to protect the public order and the rights and freedoms of othersthe very grounds that the Report itself offers for the proposed
restrictions. It is fair to say that the stage has been set for resolution of
this controversy, but the outcome remains difficult to predict.
CONCLUSION

As to the core issue of the relationship between the freedom of

religion and of expression in cases such as the much criticized OttoPreminger-Institut case, the European Court set out a workable
framework to address such issues, based on the value of respect.
Not surprisingly in light of Article 10 of the European Convention,
the subsequent cases share a common characteristic: they all involve
expressions of belief. Article 10 on the freedom of expression
specifically refers to the freedom to hold opinions and to receive and
impart information and ideas. Patterns of thought, conscience and
religion are all incontestably "opinions" that qualify for protection.
However, the religious nature of those "opinions" calls for additional
protection. By protecting the right to "manifest" those opinions that are
also patterns of thought, conscience and religion in teaching, worship,
practice and observance, the Convention is treating them as a form of lex
specialis,not in the sense that they are more important than the freedom
of expression, but in the sense that they require additional protection in
order for these rights to be meaningful. In short, all forms of
manifestation should be seen as particular forms of expression, whether
they are what one says or what one does, wears or builds.
Once the distinct nature of religious rights is appreciated, the path
for the Court becomes clearer. The early European Court case law
concerning the freedom of religion and expression sought to reconcile
competing interests by an appeal to the value of "respect." The role of
the State was not to interfere with the acts of expression for any reason
other than to ensure that the boundaries of respect had not been, or
would not be, crossed. Although this strand of thinking is still found in
the case law, it has become increasingly overwhelmed by a different
approach that sees the role of the State as being "neutral" and
"impartial" in dealings with those who exercise the freedom to express

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themselves through the manifestation of religion.

The origins of this change-now well charted 9 0-lie in cases
brought before the Court that sought to challenge the refusal of the State
to grant legal recognition or personality to certain religious
organizations 9' or State intervention in the affairs of religious
communities by "taking sides" in internal disputes.92 In cases of
organizational recognition or conflict, it is entirely reasonable and
proper that the idea of "respect" be defined as "neutrality," or perhaps
"impartiality." As a result, it was unsurprising that, in Hasan and
Chaush, the Court said that "facts demonstrating a failure by the
authorities to remain neutral in the exercise of their powers in this
domain must lead to the conclusion that the State interfered with the
believers' freedom to manifest their religion within the meaning of
Article 9 of the Convention." 93 As the Court says itself, it "has
frequently emphasised the State's role as the neutral and impartial
organiser of the exercise of various religions, faiths and beliefs."94
Unsurprisingly, this approach was extended to cases involving the
recognition or registration of religious communities, since the Court has
long maintained that "in exercising its regulatory power in this sphere
and in its relations with the various religions, denominations and beliefs,
the State has a duty to remain neutral and impartial." 95

90.

See, e.g., Malcolm Evans, Freedom of Religion and the European Convention on Human

Rights: Approaches, Trends and Tensions, in LAW AND RELIGION IN THEORETICAL AND

HISTORICAL CONTEXT 291 (Peter Cane, Carolyn Evans & Zod Robinson eds., Cambridge Univ.

Press 2008).
91. The leading case remains Metropolitan Church of Bessarabia & Others v. Mold., (No.
45701/99), 2001-XII Eur. Ct. H.R. Other more recent cases of this nature include Moscow Branch
of the Salvation Army, supra note 7; Church of Scientology Moscow v. Russ., (No. 18147/02),
Eur. Ct. H.R., (2007); Religionsgemeinschaft der Zeugen Jehovas & Others v. Austria, (No.
40825/98), Eur. Ct. H.R., (2008); Kimlya & Others v. Russ., (Nos. 76836/01 & 32782/03), 2009
Eur. Ct. H.R., among many.
92. The most well known, high profile cases of this nature concerned the engagement of the
authorities with divisions within the leadership of both the Muslim and Orthodox communities in
Bulgaria. See Hasan & Chaush v. Bulg. [GC], (No. 30985/96), 2000-XI Eur. Ct. H.R.; Supreme
Holy Council of the Muslim Community v. Bulg., (No. 39023/97), Eur. Ct. H.R. (Dec. 2004);
Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) & Others v. Bulg., (Nos.
412/03 & 35677/04), Eur. Ct. H.R. (2009). Other recent examples of similar decisions include
Svyato-Mykhaylivska Parafiya v. Ukr., (No. 77703/01), Eur. Ct. H.R. (2007) and Mirolubovs &
Others v. Lat., (No. 798/05), Eur. Ct. H.R. (2009).
93. Hasan & Chaush, supra note 92, at

78.

94. This example being taken from Leyla Sahin, supra note 22, at 1 107.

95. See Metropolitan Church of Bessarabia,supra note 92, at 1 116, where it quoted para 78
from Hasan and Chaush in support of this proposition. See also Religionsgemeinschaft der

Zeugen Jehovas & Others, supra note 92, at 1 97: "the State has a duty to remain neutral and
impartial in exercising its regulatory power in the sphere of religious freedom and in its relations
with different religions, denominations and beliefs."

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The practical consequence of this approach in religious

organization cases is consistent with the earliest Convention case law,
which largely ensures a "level playing field" between believers.9 6
The difficulty with the Court's individual rights decisions is that
language appropriately used in case law concerning State regulation of
legal personality of religious entities has increasingly been used in
situations concerning the individuals' manifestation of religion through
clothing, symbols, buildings, etc. In such contexts, the call for
"impartiality" and "neutrality" has increasingly been taken to mean that
the State must present itself as neutral, i.e. non-religious, in all of its
dealings. In this view, the mere presence of the religious is a threat to
the demonstration of neutrality.
In fact, however, State churches are not incompatible with the
ECHR97 and it has not (yet?) been seriously argued that States founded
upon systems of belief, religious or otherwise, are for that reason alone
"suspect." The acid test is whether persons who subscribe to other
belief systems, religious or otherwise, find themselves able to enjoy their
full range of rights and freedoms. It is for this reason that the Court
stresses that the state is to be neutral "in the exercise of its powers,"
rather than be "neutral" per se. 9 8 Neutrality could mean ensuring respect
for the beliefs of others, through equal treatment. It does not show a
lack of respect to receive a public service from a person wearing
religious clothing or a religious symbol but it does show a lack of
respect to refuse to receive a public service from one who does. The
Court has correctly argued that when exercising its regulatory powers
with regard to religious communities the State should act impartially or
"neutrally." But when the State addresses the freedom of individuals to
express themselves on matters of religion or belief in words, in dress or
in architecture, it is respect rather than neutrality that provides the better
starting point.

96. See, e.g., Kokkinakis, supra note 3; Larissis & Others v. Greece, (Nos. 23772/94,
26377/94, 26378/94), 1998-1 Eur. Ct. H.R.
97. For a recent reaffirmation of this, see European Commission for Democracy through Law
(Venice Commission), Opinion on the Legal Status of Religious Communities in Turkey, no.
535/2099, Doc. CDL-AD(2010)005, atl 18 (2010).
98. Supra text at note 95.

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