The Journal of Human Rights

The Journal of Human Rights

Promoting Peace, En‘forcing’ Democracy? The European Court of Human Rights’ Treatment of Islam

Document Type : Research Article

Author
Edel Hughes
Senior Lecturer at Law & Criminology Research Group, University of East London
10.22096/hr.2016.29854
Abstract
Contemporary Europe is undoubtedly a largely secular region where the notion that secularism and ‘progress’ are intertwined has long held sway. Religion in the public sphere is, for many Europeans, associated with emergent or conservative societies, whereas secularism is equated with modernism and seen as an indispensable component of modern governance. Recently, both domestic and European Court of Human Rights (ECtHR) case-law has highlighted the obvious tensions that arise in the manifestation of religion in the European public sphere.
While Article 9 of the European Convention on Human Rights affords everyone the right to freedom of thought, conscience and religion (while allowing for certain limitations as imposed by domestic authorities), in matters related to religion, ECtHR has adopted a deferential attitude towards domestic authorities in the determination of the parameters of this right. This is reflected in the fact that it was not until 1993, some thirty-five years after the Court commenced operating, that a violation of Article 9 of the Convention was found. The Court’s jurisprudence on the Article is therefore somewhat troubling and nowhere is this more aptly illustrated than in the jurisprudence relating to the wearing of the Islamic headscarf. Recent case-law in fact suggests that in that the wearing of the headscarf is viewed both as being incompatible with the principle of gender equality and in direct opposition to the principle of secularism.
Through the lens of recent Article 9 jurisprudence, this paper will assess the trends emerging in the European Court’s consideration of Islam. Discussion of relevant cases will include Dahlab v. Switzerland, Karaduman v. Turkey, Leyla Şahin v. Turkey, Refah Partisi (The Welfare Party) and Others v. Turkey as well as analysis of cases occurring at the domestic level, most notably the Teacher Headscarf Case of the German Constitutional Court and the English decision of R (on the application of Begum (by her litigation friend, Rahman)) v. Headteacher and Governors of Denbigh High School.
This paper also seeks to challenge the ECtHR reasoning in the area of expression of religion (and particularly where that religion is Islam) by analysing the question of religion in the public sphere in the broader European context. There is in fact increasing evidence to suggest that Europe is undergoing a period of de-secularisation, a reality routinely ignored by the European Court of Human Rights.

Subjects

  1. A) Books and Journals

    1. A Vakulenko (2007). “Islamic Dress in Human Rights Jurisprudence: A Critique of Current Trends”, Human Rights Law Review, Vol.7, No.4, pp. 717-739.
    2. A Vakulenko (2007). “Islamic Headscarves’ and the European Convention on Human Rights: An Intersectional Perspective”, Social & Legal Studies, Vol.16, No.2, pp.183-199.
    3. Belelieu, CD (2005-2006). “The Headscarf as a Symbolic Enemy of the European Court of Human Rights”, Democratic Jurisprudence: Viewing Islam Through a European Legal Prism in Light of the Şahin Judgment, Vol.12, No.2, pp.573-623.
    4. Berger, PL (1999). The Desecularization of the World: Resurgent Religion and World Politics, Washington: Ethics and Public Policy Center & Eerdmans Publishing Co, pp.1-19.
    5. Bleiberg, BD (2005-2006). “Unveiling the Real Issue: Evaluating the European Court of Human Rights”, Cornell Law Review, No.1.
    6. Bowen, JR (2006), Why the French Don’t Like Headscarves: Islam, the State, and Public Space, Princeton and Oxford: Princeton University Press.
    7. Boyle, K (2004). “Human Rights, Religion and Democracy: The Refah Party Case”, Essex Human Rights Review, Vol.1, No.1, pp. 1-16.
    8. Casanova, J (1994), Public Religions in the Modern World, Chicago: The University of Chicago Press.
    9. Evans,C (2001). Freedom of Religion Under the European Convention on Human Rights, Oxford: Oxford Press.
    10. Fokas, E (2007). Introduction A Al-Azmeh and E Fokas, Islam in Europe: Diversity, Identity and Influence, pp. 1-16.
    11. Janis, MW; Kay, RS & Bradley, AW (2008), European Human Rights Law: Text and Materials, Oxford: Oxford, p.323.
    12. Katzenstein, P. (2006). “Multiple modernities as limits to secular Europeanization? In T. Byrnes & P. Katzenstein (Eds.)”, Religion in an Expanding Europe, pp. 1-34.
    13. Koğacioğlu, D (2004). “Progress, Unity, and Democracy: Dissolving Political Parties in Turkey”, Law & Society Review, Vol.38, No.3, pp. 433-462.
    14. Langenfeld, C & Mohsen, S (2005). “Germany: The Teacher Head Scarf Case”, Int’l Journal of Constitutional Law, pp. 86-94.
    15. MM Idriss (2005), “R (Begum) v Headteacher and Governors of Denbigh High School: A Case Note”, Judicial Review, Vol.10, No.4, pp. 296-302.
    16. Nexon, D (2006). “Religion, European Identity, and Political Contention in Historical Perspective”, Byrnes and Katzenstein, No.1, pp. 256-282.
    17. Schilling, D (2003-2004). “European Islamaphobia and Turkey – Refah Partisi (The Welfare Party) v. Turkey’ 26 Loy. L.A. Int’l & Comp. L. Rev. 501-515.
    18. T Inglis, Z Mach & R Mazanek (2000). “Understanding Religion and Politics”, Religion and Politics: East-West Contrasts from Contemporary Europe, pp. 1-15.

    B) Documents

    1. Agga v. Greece, application no. 38178/97, judgment of 14 December 1999.
    2. Application no. 35071/97, judgment of 4 December 2003.
    3. Application no. 42393/98, admissibility decision of 15 February 2001.
    4. Communication No. 931/2000, U.N. Doc. CCPR/C/82/D/931/2000 (2004).
    5. Dahlab v. Switzerland, application no. 42393/98, admissibility decision of 15 February 2001.
    6. Dahlab v. Switzerland, application no. 42393/98, admissibility decision of 15 February 2001, 2.
    7. Dahlab v. Switzerland, application no. 42393/98, admissibility decision of 15 February 2001, 10.
    8. Hasan and Chaush v. Bulgaria, application no. 30985/96, judgment of 26 October 2000.
    9. International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171.
    10. Karaduman v. Turkey, application no. 16278/90, admissibility decision of 3 May 1993.
    11. Karaduman v. Turkey, application no. 16278/90, admissibility decision of 3 May 1993, p.104.
    12. Karaduman v. Turkey, application no. 16278/90, admissibility decision of 3 May 1993, p.108.
    13. Kavakçi v. Turkey, application no. 71907/01, judgment of 5 April 2007, para. 43.
    14. Kokkinakis v Greece, Judgment of 23 May 1993, 17 EHRR 397, para. 31.
    15. Kokkinakis v Greece, Judgment of 23 May 1993, 17 EHRR 397.
    16. Leyla Şahin v. Turkey, application no. 44774/98, judgment of 10 November 2005.
    17. Leyla Şahin v. Turkey, application no. 44774/98, judgment of 10 November 2005, para. 121.
    18. Metropolitan Church of Bessarabia v. Moldova, application no. 45701/99, judgment of 13 December 2001.
    19. R (on the application of Begum (by her litigation friend, Rahman)) v. Headteacher and Governors of Denbigh High School [2006] UKHL 15. 25.
    20. Refah Partisi and Others v. Turkey, application no. 41340/98 & 41342-4/98, judgment of 13 February 2003, para. 123.
    21. Refah Partisi and Others v. Turkey, application nos. 41340/98 & 41342-4/98, judgment of 13 February 2003, para. 50.
    22. Serif v. Greece, application no. 38178/97, judgment of 14 December 1999.
    23. Supreme Holy Council of the Muslim Community v. Bulgaria, application no. 39023/97, judgment of 16 December 2004.
    24. Turkey 2008 Progress Report, SEC(2008) 2699 final, Brussels, 5 November 2008, 19.
    25. United Communist Party of Turkey and Others v Turkey, application no. 133/1996/752/951, judgment of 30 January 1998, para. 45. 

    C) Websites

    1. http://www.bundesverfassungsgericht.de/en/decisions/re20030924_2bvr143602en.html.
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The Journal of Human Rights
Volume 11, Issue 2 - Serial Number 22
Issue 22
January 2017
Pages 129-154