uses the terminology ‘full-face veil’ or ‘face-covering veil’ to refer to both niqab and burqa. Furthermore, it refers to burkini, a swimsuit that covers the body from
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2 Human Rights of Women Wearing the Veil in Western Europe Research Paper I. Introduction The present paper analyses legislation , policies, and case – law surrounding religious attire in a number of countries in Western Europe and how they affect the human rights of women and girls who wear the veil in Western Europe . It also more broadly analyses discrimination and violence experienced by women wearing the veil in Europe learning from their own voice. Throughout the pa per worn mostly , but not exclusively , by Muslim women. There are different types of clothing that cover the body. This research is focused on manifestations of veils that are the subject of regulation in several Weste r n European Countries. They include the hijab (a piece of clothing that covers the head and neck, but not the face), niqab (a piece of clothing that covers the face, where only the eyes are visible), burq a (a piece of clothing that covers both the face and eyes) , jilbab (a loose piece of clothing that covers the body from head to toe), or abaya , kaftan, k ebaya (a loose , often black , full body cover overcoat ) . The head and body covers are often combined. In several countries, some of these clothing are based on traditional costumes rather than religion and are often worn by rural communities in the countries of origins . The paper also – – both niqab and burqa . Furthermore, it refers to burkini , a swimsuit that covers the body from head to ankles, completed by a dress. T his paper analyse s the legislation and case law in Belg ium, France, Germany, t he Netherlands , Switzerland and the United Kingdom. After a brief introduction of the legal and theoretical framing (Section II), the paper analyses legislation, case law and recommendations concerning restrictions on the wearing of religious symbols in private and public employment , education institutions and public space at the international (Section III) regional (Section IV) and national (Section V) levels. Section VI includes a broader account of discrimination experience by women wearing the veil. The paper end s with conclusion s (Section VII) . The paper is largely based on research conducted for the Office of the High Commissioner for Human Rights by the Human Rights Centre Clinic of the University of Essex. The analysis in the paper is informed by the voices and experience of women who wear the veil in Western Europe , as well as by the views of a variety of experts.
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3 II. Legal and theoretical framing This paper is grounded in human rights norms and principles, namely: religious freedom, equality and non – discrimination, and the interdependence and interrelatedness of rights. Intersectionality of the impact of the restriction analysed . Religious f reedom : No limi tations are p ermitted neither to f reedom of thought and conscience nor to , since this internal dimension ( forum internum ) of the freedom of religion is protected unconditionally 1 . T he freedom to manifest or belief externally (in the forum externum ) can be restricted under international and regional conventions in line with permissible limitation clauses 2 . However, such permissible limitations are to be narrowly understood in order to avoid p erpetuating or reinforcing inequalities. In Europe, many States depict 3 . Autonomy and choice in exercising freedom of religion and/or the right to take part in cultural rights should also be taken int o consideration in the analysis: t he wearing of religious symbols and attire by Muslim women in Europe has raised a debate about the veil’s significance and whether wearing it is by coercion or by choice. Even w ithin the feminist movement no consensus is found regarding this issue . Some conceive the veil , particularly the full – face covering veil, as a sign of oppression . Others, while firmly condemning the imposition of the veil on women, recognize that wearing it can be an expression of individuality, a personal choice 4 . Under the latter understanding, restrictions of religious attire are a perpetuation of gender inequal ity, as they remove agency from Muslim women. The f ormer Special Rapporteur on Freedom of Religion or Belief , Asma Jahangir , stressed that displaying re ligious symbols, and also the negative freedom from being forced to wear or display 5 . The Beirut Declaration and its 18 commitments on also highlight conscience, religion or belief . 6 1 Human Rights Committee, General Comment no. 22 on Article 18 (Freedom of Thought, Conscience or Religion), CCPR/C/21/Rev.1/Add.4, para 3; General Assembly, Interim report of the Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt, A/67/ 2 Article 18, paragraph 3, of the ICCPR and Article 9, paragraph 2, of the ECHR. See also Jeremy Gunn, Religion and Human Rights, an Introduction (OUP, 2011) 257 – 258. 3 Bowe n, Christophe Bertossi, Jan Willem Duyvendak and Mona Lena Krook (eds.) European States and Their Muslim Citizens (CUP 2014). 4 eta, ‘Forgotten Women: The Impact of Islamophobia on Muslim Women’ (ENAR European Network Against Racism 2016) 16. 5 See UN Docs E/CN.4/2006/5, paras. 36 – 37 and 60; A/63/161, para. 47; A/64/159, para. 14; A/65/207, para. 34; A/HRC/6/5, para. 14; A/HRC/7/10/Add.2, para. 54; A/HRC/10/8/Add.2, para. 64; A/HRC/13/40/Add.2, para. 31; A/HRC/13/40/Add.3, para. 60. 6 Beirut
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4 Muslim women in Europe 7 . Reasons cited by women to wear a veil are inter alia asse rtions of and connecting with and maintaining their identity as Muslims in day – to – 8 . Non – discrimination and equality are essential principles of human rights law: a ny discrimination on grounds of, inter alia, race, ethnicity, sex and religion is contrary to international human rights law 9 . There are direct and indirect forms of discrimination; the former meaning that an individual is treated less favourably than someone else in similar circumstances and the latter meaning that the law is in appearance neutral when in fact it has a disproportionate effect on specific individuals and groups 10 . Moreover, Sates should not only strive to ach de jure de facto – existing structural and historical patterns of discrimination and unequal power relationships between women and men 11 , as – 12 . Moreover, it is the obligation of States, enshrined in Article 5 (a) of the Convention on the Elimination of Discrimination f conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and Th is aspect is important when analysing arguments concerning the symbolic value of the veil, in particular the face – covering veil. Cultural bias in determining what perpetuates gender – stereotypes must also be taken into account. ork also includes the commitment to ensure non – dis crimination and gender equality, including by revisit ing those religious understandings and interpretations that appear to perpetuate gender inequality and harmful stereotypes . 13 It is also important to approach these debates through the lenses of intersectionality of discrimination . Intersectionality is the acknowledgement that individuals can face multiple, intersecting and compounded discrimination based on sex and gender linked with other factors, such as race, ethnicity, religion or belief, health, status, age, class, caste and sexual orientation and gender identity. 14 When applied to the topic of this paper , it is important to note that Muslim women and girls in Western Europe can face discrimination in at least two ways: because they are women and because they are Muslim. Other characteristics, for example race, age, ethnicity, nationality or immigration status should not be overlooked when analysing their experience. Consider ations should also be given to the rights of minorities . States are bound by Article 27 of the the right, in community with the other members of their group to enjoy their own culture, to profess and 7 Erica Howard, ‘Islamic veil bans: the gender equality justification and empirical evidence’ in Eva Brems (eds.) The experiences of Face Veil Wearers in Europe and the Law (CUP 2014) 210. 8 experiences of Face Veil Wearers in Europe and the Law (CUP 2014) 190. 9 – Discriminatio (eds.) International Human Rights Law (OUP 2014) 168. 10 Committee on the Elimination of Discrimination against Women, General Recommendation No. 28 on the Core Obligations of States Parties unde r Article 2 of CEDAW, CEDAW/C/GC/28, para. 16. 11 Ibid. See also OHCHR fact – 12 Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (OUP 2008), 178; Thlimmenos v. Greece (ECtHR 2000, no. 34369/97), para. 44. 13 . 14 Committee on the Elimination of Discrimination against Wo men , General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of CEDAW, para. 18.
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5 pract 15 Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practice their religion, in community with the other members of the group 16 . The United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, in its Article 4, paragraph 2, establishes that States shall take me asures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards 17 . Furthermore, to stand up for the rights of all persons belonging to minorities and to defend their freedom of religion or belief as well as their right to parti cipate equally and effectively in cultural, religious, social, economic and public life . 18 Interdependence and indivisibility : a ll human rights are indivisible, interrelated and interdependent. The improvement of one right facilitates advancement of the ot hers. Likewise, the deprivation of one right adversely affects the others. Therefore, the analysis of legislation on the wearing of religious symbols should take into account the overall impact of restrictions on the enjoyment of human rights , beyond the right to religious freedom (such as the right to education, to security etc.). With regard to hate crimes against women wearing the veil , States Parties to the ICCPR must prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (Article 20, paragraph 2). 15 See also Article 30 of the Convention on the Rights of the Child. 16 While Article 27 contains no specific limitation clauses, measures taken in the context of the implementation of this Article must equally respect the provisions of Articles 2.1 and 26 of the Covenant both as regards the treatment between different minorit ies and the treatment between the persons belonging to them and the remaining part of the population. These rights provide protection for the enjoyment of identity – related characteristics underlying national, ethnic, linguistic or religious communities by preventing the state from restricting the expression of linguistic, religious or cultural characteristics among members of a minority; or from using unreasonable or unjustified distinctions when laying down conditions for the accessibility to services, pri vileges and benefits provided or allowed by the state. 17 This paragraph calls for more than mere tolerance of the manifestation of different cultures within a State. The creation of favourable conditions requires active measures by the State. The nature o f those measures depends on the situation of the minority concerned, but should be guided by the purpose set forth in Article 4.2, which is twofold: On the one hand, individual members of the minority shall be enabled to express the traditional characteris tics of the group, which may include a right to use their traditional attire and to make their living in their own cultural ways. On the other hand, they shall be enabled, in community with other persons belonging to the group, to develop their culture, la nguage and traditions. 18 www.ohchr.org/Documents/Press/Faith4Rights.pdf .
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6 III. United Nations human rights standards and jurisprudence a. O verview Overall, the UN human rights bodies and mechanisms interpret quite restrictively exceptions or symbols and dress . Article 18 of the International Covenant on Civil and Political Rights (ICCPR) prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental Human Rights Committee interpreted much narrower grounds for limitation s , as we will see below . The Human Rights Committee, in General Comment 22, stated that such limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrict ions may not be imposed for discriminatory purposes or applied in a discriminatory manner. The Committee observed that the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations on the freedom to man ifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition. Any such limitations must be understood in the light of universality of human rights and the principle of non – dis crimination . 19 Also, in terms of proportionality, the Special Rapporteur on Freedom of Religion or Belief, Ahmed Shaheed, advises that interfaith communication and to invest in both religious literacy and religious 20 . As mentioned above, Asma Jahangir, stressed the importance of safeguarding both the positive freedom to voluntarily display religious symbols and also the negative freedom from being forced to display xt of wearing the full head – to – 21 . Her successor Heiner Bielefeldt noted to be free from any confrontation with religious symbols or other manifestations of religious faith or pra ctice in the public domain. Such demands would obviously imply a State policy of purging the public sphere of all religious symbols, which would clearly run counter to the human right to publicly manifest community with others. Instead, the purpose of the State institutions, such as the police, military and public schools, in which authority is exercised, require 22 19 Human Ri ghts Committee, General comment no. 34, CCPR/C/GC/34, para. 32. 20 Human Rights Council, Report of the Special Rapporteur on freedom of religion and belief (2018) UN Doc A/HRC/37/49, para. 88. 21 General Assembly, Interim report of the Special Rapporteur o n freedom of religion and belief (2010) UN Doc A/65/207, para. 34. 22 UN Doc A/HRC/19/60/Add.1, para. 31. See also Heiner Bielefeldt/Nazila Ghanea/Michael Wiener, Freedom of Religion or Belief – An International Law Commentary (OUP 2016), 158 – 159. Former Special Rapporteur on freedom of religion or belief, Abdelfattah Amor, had already criticized the obligation to wear religious dress in public in certain countries (E/CN.4/1998/6, para. 60) as well as reports of punishment by whipping and/or a fine
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7 The UN human rights mechanisms have expressed concerns that restrictions on the wearing of religious symbol s may represent discrimination against specific groups. The former Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Githu Muigai, found discrimination where certain specific groups of women were prohibited from wearing the Islamic veil . H uman rights treaty bodies have pointed to th e need to analyse the impact of restrictions on the wearing of the veil/religious symbols with the enjoyment of other rights, such as the rights not to be discriminated against, to privacy, to freedom of expression, to take part in the conduct of public affairs and the rights of minorities. T he Committee on the Elimination of Discrimination against Women (CEDAW) expressed concerns in con cluding observations about the lack of information on the impact of the ban on wearing headscarves on women and girls and recommended to monitor and assess this impact, in particular in relation to their acc ess to education and employment . 23 The Committee o n the Rights of the Child similarly expressed concerns about r egulatio ns prohibiting the wearing of a headscarf by women and girls in government offices and in schools and universities . 24 b. Employment In a 2018 case against France, the Human Rights Committee found violations of Articles 18 and 26 where a crèche employee had been fired for wearing the headscarf. 25 She had already been wearing the headscarf for multiple yea rs, when she was informed that she would no t be allowed back to work wearing the headscarf when coming back from her parental leave . Subsequently, upon her return, while wearing the headscarf , she was dismissed for serious misconduct for insubordination. The Committee underlined that the State party did not explain how the wearing of t he headscarf ran counter the objectives of the crèche or how it interfered with the rights and freedoms of others. The Committee also found a violation of Article 26 of the Covenant because of the disproportionate impact of the restriction on the author as a Muslim woman who chooses to wear the headscarf . c. Education In a 2004 case of a student excluded from university for wearing a headscarf in Uzbekistan , the Human Rights Committee clarified that restrictions imposed by States are only allowed when based on the grounds specified in Article 18 (3) of the ICCPR . The Committee found a violation as the State had failed to invoke any specific ground for which the restriction imposed on the author would in its view be necessary in the meaning of article 18 , paragraph 3. 26 only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discrim inatory 27 (A/51/5 42/Add.2, para. 51) and a growing number of women being attacked in the streets (E/CN.4/2003/66/Add.1, para. 59), or even killed after being threatened for failing to wear religious symbols (E/CN.4/1995/91, p. 36). 23 For example CEDAW/C/BEL/CO/7 paras. 18 – 19 (Belgium) and CEDAW/C/TUR/CO/6 paras. 16 – 17 (Turkey). 24 For example CRC/C/TUN/CO/3 paras. 36 – 37 (Tunisia). 25 F.A. v. France, Communication No. 2662/2015, (2018) UN Doc CCPR/C/123/D/2662/2015. 26 Raihon Hudoyberganova v. Uzbekistan, Communication No. 931 /2000, (2004) UN Doc CCPR/C/82/D/931/2000, para. 6.2. 27 Human Rights Committee, General Comment no. 22 on Article 18 (Freedom of Thought, Conscience or Religion), CCPR/C/21/Rev.1/Add.4, para 9.
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9 IV. Europe: regional standards and case law According to Article 2 of the Treaty on the European Union respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities . According to the same Article, European societies have pluralism, non – discrimination, tolerance, justice, solidarity and equality between women and men i n common . However, human rights organizations denounced growing r acist, xenophobic, and anti – Muslim sentiment s in Europe , with M uslims experiencing hostility and intolerance , often justified under the narrative of combatting terrorism and a nti – Semitism, in cluding hate crimes, remain ing a serious concern. 32 E xtremist parties and ideas exercised an outsize influence over European politics recently . 33 The European Convention on Human Rights (ECHR) is the main instrument protecting human rights of the Council of Europe (CoE) . The provision most relevant to the wearing of religious attire by Muslim women in this international instrument is Article 9 (1) on freedom of thought, conscience and religion 34 . and the freedom to manifest it in worship, teaching, practice and observance. The freedom protected under this article is one of the foundations of a democratic society 35 . For the European Court of Human Rights (ECtHR), there is no democracy without plural ism citing pluralism, tolerance and broadmindedness as hallmarks of a “democratic society” 36 . Therefore, the right to manifest one’s religion under the Convention includes protecting the wearing of religious attire or symbols 37 . However, this right is not absolute, and restrictions might be justified under one of the grounds enumerated in Article 9(2) of the Convention; public safety, public order, health or morals, or for the protection of the rights and freedoms of others 38 . National security is not part Other relevant provisions in the Convention are Article 8 (Right to respect for private and family life); Article 14 (Prohibition of discrimination) and; Arti cle 2 of Protocol No. 1 (Right to education). The 39 In the European Union’s (EU) legislation, the principle of non – discrimination is enshrined in Article 19 of the Treaty on the Functioning of the European Union (TFEU), which states that the European religion or bel 40 41 . Particularly important 32 World Report 2018 . 33 World Report 2019 . 34 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, amended) (ECHR), Art. 9 para. 2. 35 se – Others v. Moldova (ECtHR 2001, no. 45701/99), paras 115 – 116. 36 Handyside v. United Kingdom (ECtHR 1976, no. 5493/72), para. 49 and Young, James and Webster v. United European Convention on Human Rights (Sweet & Maxwell, 2012), 65. 37 Leyla Sahin v. T urkey (ECtHR 2005, no. 44774/98), para. 78. 38 ECHR, Art. 9 para 2. 39 40 Treaty on the Functioning of the European Union (European Community Treaty ) (TFEU), Article 19(1). 41 Charter of Fundamental Rights of the European Union (EU Charter) [2010] OJ C 83/02.
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10 for the protection of the rights of Muslim women wearing religious attire are Article 10 on the freedom of thought, conscience and religion, Article 21 on non – discrimination, and Article 22 on cultural diversity. To ensure the implementation of non – discrimination law within the States, the EU has adopted two directives, one dealing with racial discrimination 42 and the other one dealing with other grounds of discrimination, including religion or belief. The latter directive – Council Employment Equality Directive 2000/78/EC – establishes a general framework for equal treatm ent in employment and occupation 43 . It also defines the principles of direct and indirect discrimination, and states that while direct discrimination is prohibited on any of the grounds covered by each Directive, indirect discrimination gives Member States a margin of appreciation for justification 44 . a Private employment On 14 March 2017, the Court of Justice of the European Union (CJEU) issued its first two decisions interpreting the above – mentioned Employment Equality Directive 2000/78/EC to assess whether there was discrimination on religious grounds in employment. While Bougnaoui 45 and Achbita 46 both deal with whether requiring that an employee take off her Islamic headscarf at work can amount to direct discrimination, the CJEU provided fur ther guidance on whether it could amount to indirect discrimination. In the Belgian case Achbita , where the claimant was not allowed to wear a visible sign of religious belief all visible signs of political, philosophical or religious beliefs at work did not constitute direct discrimination but could constitute indirect discrimination. However, it did not elaborate on that matter as it considered tha t it was for the national court to decide whether the ban constituted indirect discrimination 47 . In the French Case Bougnaoui , a woman was dismissed because she refused to take off her headscarf at work after her employer required her to. The French court asked the CJEU whether article 4(1) of the Employment Equality Directive can be interpreted as meaning that the wish of a customer to not have services provided by an employee wearing a headscarf constitutes a genuine and determining occupational requirement, as it could be the only justification for a direct discrimination. is a subjective consideration 48 . Explicitly referring to the guidance given in Achbita , it further stated that a difference of treatment does not amount to indirect discrimination if it is justified by a legitimate aim and the means to achieve it are neces sary and proportionate 49 . 42 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin 43 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in e mployment and occupation. 44 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, Article 2(2). 45 Case C – ADDH) v Micropole SA [2017] ECLI:EU:C:2017:204. 46 Case C – 157/15 Samira Achbita, Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV [2017] ECLI:EU:C:2017:204. 47 Case C – 157/15 Samira Achbita, Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV [2017] ECLI:EU:C:2017:204, para. 44. 48 Case C – [2017] ECLI:EU:C:2017:204, para. 40 49 Case C – ECLI:EU:C:2017:204, para. 33.
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11 The rulings provided minimal direction to States although they prompted national media across European States to announce the legality of fully banning the headscarf . As the CJEU determined that proportionality is up to national judges to determine, it is not yet known what impact these rulings may have on private (and public ) of appreciation, with the CJEU concerning the determination of what constitutes a legitimate aim and which means are necessary and proportionate. The European Court of Human Rights has addressed the matter of the wearing of religious attire in private employment in the joint case Eweida & Others v. United Kingdom , which involved the wearing of a religious cross at work rather than of a headscarf . The first applicant, Ms Eweida, wore a cross visibly while working as a member of the check – in staff for British Airways, a private company. British Airways asked her to either remove or conc eal the cross and, when she refused, sent her home without pay and subsequently offered her another position without customer contact, which she also refused. The second applicant, Ms Chaplin, was employed at the geriatric ward of a State hospital and also sought to wear her cross, which was refused. She was therefore moved to a non – nursing temporary position. In the case of Ms Eweida, the Court held that, in the private sector, the right to freedom of religion had to be balanced against the interest of cor porate image, but concluded that freedom of religion was more important, finding a violation of Article 9 of the Convention 50 . In contrast, in the case of Ms Chaplin, the Court found that justifications of health and safety concerning a hospital worker cons tituted a 51 . It is important to note that despite the Chaplin case being on public employment, the arguments and reasoning are the same as for private employment. In public employment, this hierarchy of health and safety over corporate image as permissible reasons to justify bans on religious clothing and symbols appear consistent with the UK employment tribun decisions regarding headscarve s . 52 Although this ECtHR decision was not about headscarves , it may give an idea of the Court’s future jurisprudence regarding religious attire in private employment. 53 b . Public employment in public employment settings because of the importance given to secularism religions 54 of the State when they perform their duties, the rules require their appearance to be neutral in order to preserve the principle of 55 The duty of neutrality applies to all religious a ttire, and restrictions by the State are always upheld by the Court. References to 50 Eweida & Others v. UK (ECtHR 2013, nos. 48420/10, 36516/10, 51671/10 and 5984 2/10), para. 94. 51 Eweida & Others v. UK (ECtHR 2013, nos. 48420/10, 36516/10, 51671/10 and 59842/10), para. 99. 52 ot compromise health and safety requirements, while Sikh nurses were not allowed to 53 However, in August 2018, Ms Eweida announced that she is bringing her case to the Employment Tribunal for the period of suspension was paid to her and she still feels unwelcome in her workplace. See Nadia E my fight: suspended for wearing a cross – www.crowdjustice.com/case/crosscase – victor . 54 About public officials, see Ebrahimian v. France (ECtHR 2015, no . 64846/11); Dahlab v. Switzerland (ECtHR impartiality, see Metropolitan Church of Bessarabia and Others v. Moldova (ECtHR 2002, no. 45701/99) par as. 115 – 116. 55 Kurtulmus v. Turkey (ECtHR 2006, no 65500/01), paras. 6 and 9.
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12 secularism seem to carry particular weight in cases where it is a recognised constitutional value of the State (e.g. France or Turkey). Public employment is usually the fiel d in which bans are most far – reaching, since States invoke values of neutrality as a corollary of secularism to justify them, which they cannot do regarding private employment or private citizens 56 . Secularism is not usually an argument in matters concernin g public spaces or private employment. However, this duty of neutrality should not apply to private citizens, e.g. in a courtroom. In the recent case of Lachiri v. Belgium , the Court found a violation where the applicant was removed from the court room in the context of her being a civil party to a case concerning the killing of her brother. 57 The Court held that, while it did not consider a courtroom to be part of the public space but rather a public institution, the rationale for the applicant’s exclusi on from the courtroom was not the preservation of the neutrality of the public space and, as the applicant was not disrespectful and did not constitute or threaten to constitute a threat to the proper conduct of the proceedings, her exclusion was not a pro portionate measure. 58 c. Education The jurisprudence in the field of education is similar to that applied to public employment and is an area in which secularism has been recognised as a valid argument by the ECtHR. Regarding teachers, the ECtHR has considered it justified to limit freedom of religion to protect the secularity of the State and neutrality of public service, and the rights and freedoms of others 59 . In Dahlab v. Switzerland , the young age of the children led the Court to believe that a te acher wearing a hijab might influence them in their opinions. For the Court, the headscarf message of tolerance, equality and non – convey to pupils 60 . Under Article 9 ECHR, the State has a duty of neutrality and impartiality. This is the argument highlighted in Leyla Sahin v. Turkey to consider that the context of secularism in Turkey allowed for bans on religious attire for students at university 61 . The Court took context into question, interpreting hand, Heiner Bielefeldt, former UN Special Rapporteur on Freedom of Religion or Belief, stated that international human rights standards are better protected if there is a general but reversible 62 . The ECtHR acknowledged a lack of data clearly linking the display of re ligious symbols and any effect on young persons in a case concerning the display of Christian crosses on the walls of public school 56 S.A.S. v. France (ECtHR 2014, no. 43835/11). 57 Lachiri v. Belgium (ECtHR 2018, no. 3413/09). 58 Lachiri v. Belgium (ECtHR 2018, no. 3413/09), paras. 46 – 47. 59 Dahlab v. Switzerland (ECtHR 2001, no. 42393/98) and Kurtulmus v. Turkey (ECtHR 2006, no. 65500/01). 60 Dahlab v. Switzerland (ECtHR 2001, no. 42393/98) and Kurtulmus v. Turkey (ECtHR 2006, no. 65500/01). 61 Leyla Sahin v. Turkey (ECtHR 2005, no. 44774/ 98), paras. 116 and 165. 62 manif est religion or belief by wearing religious symbols may be justifiable in order to protect minority students para 55; Heiner Bielefeldt/Nazila Ghanea /Michael Wiener, Freedom of Religion or Belief – An International Law Commentary (OUP 2016), 152).
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