The European Court of Human Rights in Strasbourg has once again confirmed that it is not prohibited to ban the wearing of conspicuous religious symbols in schools.

On 9 April this year, the Court handed down its ruling on an application lodged by three young girls (or their legal representatives) challenging a Flemish Community circular banning the wearing of religious symbols in the schools it organises. (Application No 50681/20 Mikyas and Others v Belgium)

This text had been challenged by the applicants before the Belgian courts, who had brought the case before the Tongeren Court of First Instance. On 23 February 2018, the Tongeren Court of First Instance ruled that the ban at issue was incompatible with Article 9 of the Convention. It held that the provision in question had been introduced solely on general policy grounds relating to community education and that there was no concrete reason or problematic situation in the establishments concerned to justify the implementation of such a general ban. The Court declared the ban inapplicable to the applicants. The Flemish Community's education authority, GO, appealed against this decision and on 23 December 2019 obtained a ruling in its favour. Following this decision, the applicants brought the case before the ECHR.

What lessons can we learn from this case?

1° The Court finds that the Flemish decision is carefully reasoned and that the prohibition is intended to protect certain pupils against the pressure that others might exert, as emphasised in one of the recitals of the decision of the GO Education Council:

That the right to freedom of religion is compromised when the wearing of certain religious symbols is presented as an obligation, thus creating discrimination between those - whether or not they are followers of the religion concerned - who wear these symbols and those who do not, the members of the latter group being held to be inferior by those of the former group, who impose unacceptable pressure on them with a view to making them wear a religious symbol anyway, whereas one of the fundamental principles of the GO! educational project consists precisely in accepting the equal value of all.

2° The Court reiterates its case-law in which it recognises that the national courts have a wide discretion in determining the relationship between religious beliefs and the State. On several occasions in the past, it has confirmed that the religious freedom guaranteed by Article 9 of the European Convention on Human Rights is not absolute and may, in certain cases, be subject to limitations,

3° The Court also rejected the arguments of the third-party interveners that the impugned decision would prevent the young women from pursuing their studies in the normal way. These third parties relied on arguments put forward in various UN reports, including those of the UN Committee on the Elimination of Racial Discrimination:

"The Committee is concerned that the decision of the Flemish Community's Autonomous Education Office to ban the wearing of religious symbols in all schools under its authority and the decision of the French Community to leave it to individual schools to decide on this issue may open the way to acts of discrimination against members of certain ethnic minorities".

In this respect, the Court notes that :

As to the positions of the United Nations bodies to which the third-party interveners refer (see paragraphs 35 and 36 above), the Court notes that many of them are very broad in scope in that they go beyond the mere prohibition on the wearing of convictional symbols in Flemish Community education. In any event, those positions could not be decisive for the purposes of the Court's assessment of the compatibility of the impugned prohibition with the Convention, the observance of which it ensures (Humpert and Others v. Germany [GC], nos. 59433/18 and three others, § 127, 14 December 2023), especially as it already has extensive case-law on the issue at stake (see paragraphs 62 to 66 above). In any event, it has not been established that the ban at issue was inspired by any form of hostility towards persons of the Muslim faith.

4° lastly, the Court found that in the present case GO and the Flemish Community had acted in accordance with the case-law of the Court and that there had therefore been no breach of Article 9. Above all, the Court emphasises that :

"The Court has already ruled in this respect that a ban on wearing religious symbols imposed on pupils could precisely meet the need to avoid any form of exclusion and pressure while respecting pluralism and the freedom of others. The Court has already held in this regard that a prohibition on pupils wearing religious symbols may be precisely what is needed to avoid all forms of exclusion and pressure while respecting pluralism and the freedom of others (see, among other authorities, Dogru, cited above, §§ 70-72, and Bayrak, cited above)".

In conclusion, it is to be hoped that this decision, like many others, will reinforce the view of those who want to protect pupils from the proselytising of their fellow pupils. The ban on conspicuous religious symbols (which, as in this case, included the headscarf as well as crosses and yarmulkes) is not Islamophobia. Contrary to what the ULB Equality Law Clinic maintained, the ban does not discriminate against ethnic minorities. On the contrary, it protects the right of certain members of these same minorities to practise free examination and to refuse to be confined by their identity. Freedom is not the freedom of groups, especially activists, but must always be the freedom of the individual.

 

Claude Wachtelaer,

Past Chairman