9.

THE ECHR AND FREEDOM OF RELIGION (SS)

The impact of the ECHR on questions of religious and cultural identity

Essential reading:
Please read the following three cases in full and be prepared to discuss them in depth:

- R (on the application of Begum (by her litigation friend, Rahman)) (Respondent) v Headteacher &
Governors of Denbigh High School (Appellants) [2007] 1 AC 100

The appellant’s school appealed against the decision that the respondent had been unlawfully
excluded from school for failure to comply with her school’s dress code, and that her rights to
education and to manifest her religion under the Human Rights Act 1998 (Sch.1 Part II Art.2 and
Sch.1 Part 1 Art. 9) had been violated. The respondent was Muslim and wished to wear a jilbab to
school, rather than a Shalwar Kameeze as dictated by D’s uniform policy. Three other schools in the
area allowed the wearing of a jilbab but the respondent wasn’t allowed to transfer school and
eventually waited two years to do so. The main issues were: she was allowed to wear the jilbab and
whether her being excluded resulted in the breach of the right to education. The courts allowed the
appeal as what can be seen as ‘interfering’ with expressing religious beliefs depends entirely on the
circumstances. As the respondent could have attended a school that allows wearing a jilbab there
was no interference. There was also no breach of article 2 of the first protocol in that it was the
respondent’s choice to go two years without education instead of following a policy that was fair and
just.

- Leyla Şahin v Turkey (2007) 44 EHRR 5

The applicant, a Turkish national, complained that the University rule prohibiting the wearing of
Islamic headscarves was a breach of many of her human rights; articles: 8, 9, 10 + 14. Because of
her continuing wearing of her headscarf she wasn’t allowed access to lectures or exams. She moved
to Vienna and brought a complaint to the EC of HR which held that the interference was justified. The
applicant appealed but the Grand Chamber dismissed the complaint. They stated that even though
there was an interference with article 9 there was a legal basis for this within Turkish law. The court
stated that although article 9 does guarantee freedom of religion to a certain extent it doesn’t allow
persons to disregard rules that are in place for good reason.

- Lautsi v Italy (App. No. 30814/06), judgment of November 3, 2009 ECtHR

The complainant (L) complained that the respondent state had violated her right to educate her
children in conformity with her religious and philosophical convictions and had infringed her right to
freedom of thought, conscience and religion. L was an Italian national whose two children, aged 11
and 13, attended a state school where a crucifix was displayed in every classroom. L considered that
that practice was contrary to the principle of secularism in accordance with which she wished to bring
up her children. The administrative court dismissed L's complaint; it held that the crucifix was both the
symbol of Italian history and culture and symbolic of the principles of equality, liberty and tolerance, as
well as of the state's secularism. L submitted that there had been breach of her rights under the
European Convention on Human Rights 1950 Protocol 1 art.2 and art.9. The courts held that

Questions to guide your preparation and seminar discussion

1. In what ways are the cases of Begum and Şahin similar, and in what different? How important are
these similarities and differences?
2. In what ways is Baroness Hale’s opinion in Begum different from the opinions of the other judges?
Which of the opinions do you prefer and why?

3. How is the rhetoric of choice played out in the Begum judgment? How do the courts see the role of
choice when it comes to practising a religion? What is your personal stance on this? (See Gibson,
Leader, Vakulenko.)

4. Şahin v Turkey was the first case in which the European Court of Human Rights conceded that
prohibiting the wearing of Islamic headscarves could raise an issue under Article 9 ECHR. Prior to
Şahin, a number of very similar cases had been declared inadmissible due to being manifestly ill-
founded. What might have caused such a shift in the Court’s approach?

5. Do you agree with the majority of the European Court of Human Rights in Şahin v Turkey or with
the dissent of Judge Tulkens? How do individual rights and societal forces interact in the Court’s
analysis?

6. To what extent do the findings of the Court in Lautsi comport with those in Şahin? In constructing
your answer, consider Gibson’s [see essential reading list] argument that ‘[a] distinction can and
should be drawn between, on the one hand, removing religious symbols from state classrooms--as in
Lautsi-- and, on the other hand, denying the right of state schoolteachers, schoolchildren and
university students to wear religious dress--as in Dahlab, Dogru, and Karaduman and Şahin
respectively.’ To what extent do you agree with this statement?

7. In the second part of the seminar, we shall consider alternative legal bases (other than Article 9
ECHR) under which cases such as Begum and Şahin could be litigated. Think in terms of other
articles of the European Convention on Human Rights which might be relevant. What kind of
considerations would influence your choice of legal argument?