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Women’s Right to Autonomy and Identity in European Human Rights Law: Manifesting One’s Religion

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Abstract

Freedom of religious expression is to many a fundamental element of their identity. Yet the jurisprudence of the European Court of Human Rights on the Islamic headscarf issue does not refer to autonomy and identity rights of the individual women claimants. The case law focuses on Article 9 of the European Convention on Human Rights, which provides a legal human right to freedom of religious expression. The way that provision is interpreted is critically contrasted here with the right to personal autonomy and identity now developed by that court in interpreting Article 8 which contains a right to respect one’s private life.

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Notes

  1. See for example Resolution (78) 37 of 27 Sept 1978; Recommendation R (85) 2 of 5 Feb 1985.

  2. The Convention forms part of the international protection of human rights which comprises international, regional and national protection of rights to persons in the civil, political and social and economic realms.

  3. This court can now sit as a Chamber and as a Grand Chamber, following reforms in 1998.

  4. I use the term ‘Islamic headscarf’ in this article to mean any form of Islamic religious clothing worn by women that covers their heads. The ‘veil’ is used to mean a covering across their faces. Any more specific forms of clothing are described in the text of the article.

  5. It is the recent adoption of a new law outlawing any religious sign or garment that overtly manifests the religious affiliation of the wearer in state primary and secondary schools which has provoked most recent comment. (see Law No 2004–228 of March 15, 2004, JO March 17 2004, p. 5190 JCP 2004, III, p. 640—www.legifrance.gouv.fr).

  6. This change could be explained by a variety of factors including the September 11th 2001 bombings in New York, the wars in Afghanistan and Iraq, and the London bombings of 7 July 2005, which could be said to have contributed to a feeling of hostility or suspiciousness towards aspects of Muslim identity.

  7. R (on the application of Begum) versus Denbigh High School Governors [2006] UKHL 15.

  8. This case was widely reported in the British media. See, for example, http://education.guardian.co.uk/schools/story/0,,2038239,00.html.

  9. Karaduman versus Turkey, Application no. 16278/90, 3 May 1993; Dahlab versus Switzerland, Application no. 42393/98, 15 February 2001 Dal and Ozen versus Turkey, Application no. 45378/99, decision 3 October 2002; Baspinar versus Turkey, Application no. 45631/99, decision 3 October 2002; Sen and Others versus Turkey Application no. 45824/99, admissibility decision 8 July 2003. Leyla Sahin versus Turkey, European Court of Human Rights Grand Chamber, Application No. 44774/98, 10 November 2005 (hereinafter “Sahin”); Chamber judgment 29 June 2004, available at www.echr.coe.int/echr.

  10. See, for example, Tysiac versus Poland Application no. 5410/03 Judgment 20 March 2007 at paragraph 107.

  11. Karaduman versus Turkey; Dahlab versus Switzerland, both above n. 9.

  12. The applicant’s request that the case be referred to the Grand Chamber pursuant to Article 43 of the Convention was accepted. Article 43(2) states that a panel of five judges of the Grand Chamber shall accept such requests if the case raises a serious question affecting the interpretation or application of the ECHR or its protocols, or a serious issue of general importance. The Grand Chamber found no violation by Turkey by a majority of 16 to 1 of Article 9 (right to religious expression) and Article 2 of Protocol 1 (right to education), and, unanimously, that there was no violation of Articles 8, 10 or 14.

  13. Judges Rozakis and Vadij disagreed with this aspect of the majority judgment: see their concurring opinion.

  14. Her judgment has found support in Baronness Hale’s judgment in R (Begum) above n. 7.

  15. Committee of Ministers, Recommendation No R (92) 6 adopted 9 April 1992.

  16. European Commission Against Racism and Intolerance (2005) 36 Annual Report, main trends para 2.

  17. See X versus Iceland Application no. 6825/74, Decisions and Reports of the European Commission Vol 5, p. 86; Bruggeman and Scheuten versus W Germany (1981) EHRR 244.

  18. Niemietz versus Germany (1992) 16 EHRR 97 at para 29.

  19. Dissenting opinion in Cossey versus the UK Series A No 184, 24–25.

  20. Pretty versus United Kingdom (2002) 35 EHRR. 1 at para 61.

  21. See Von Hannover versus Germany Application no. 59320/00 Judgment 24 June 2004; Tysiac versus Poland above n. 10.

  22. Tysiac versus Poland above n. 10. In D versus Ireland Application no. 26499/02, Judgment 27 June 2006, the applicant challenged the Irish law on termination of pregnancy which provided for legal abortion only where the life of the woman was in danger and the restrictions on provision of information on obtaining abortions abroad. The European Court decided that she had failed to exhaust domestic remedies. The different handling of these two cases is highlighted by dissenting Judge Borrego Borrego in Tysiac versus Poland .

  23. Tysiac ibid at para 107, citing Pretty above n. 10 at paragraph 61, Glass versus UK 61827/00; Sentges versus The Netherlands 27677/02 8 July 2003; Pentiacova versus Moldova 14462/03; Nitecki versus Poland 65653/01 21 March 2002; Odievre versus France Application no. 42326/98, Judgment 13 February 2003.

  24. See Dudgeon versus UK (1982) 4 E.H.R.R. 149; Norris versus Ireland [1988] ECHR 22; Smith and Grady versus UK (1999) 29 EHRR 493; Lustig-Prean and Beckett versus UK (1999) 29 EHRR 548; Van Oosterwijk Report of 1 March 1979 , B.36 (1983), p. 26 Rees versus UK Report of 12 December 1984, A.106, p 25; Cossey versus UK above n. 19; B versus France Judgment of 25 March 1992, A.232-C, 51 Sheffield and Horsham(1997) 27 EHRR 163; Goodwin versus United Kingdom (2002) 35 E.H.R.R. 18; I versus United Kingdom Application 25680/94 Judgment 11 July 2002.

  25. See Gaskin versus the UK Judgment 7 July 1989 A.160; M.G. versus United Kingdom Application no. 39393/98, Judgment 24 September 2002; Mikulic versus Croatia Application no. 53176/99, Judgment 4 September 2002; Odievre versus France above n. 23. See O’Donovan and Marshall (2006).

  26. The wearing of the Islamic headscarf as a religious requirement arises from contested interpretations of the Koran which appears to state that women should not display their ‘beauty and ornaments’ except to ‘their husbands, their fathers … their sons … their brothers … or their women’ Koran 33:53–59. The relevant passages have been interpreted by many to mean that, other than in the circumstances stated, women must cover their hair. This seeming restriction on women has been interpreted as a mark of women’s subordination to men.

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Acknowledgements

With thanks to the referees of Res Publica for their helpful comments. Earlier versions of parts of this paper were presented at the Association for Legal and Social Philosophy conference, Counting the Costs of Free Expression: Burdens and Limits, Strathclyde University, 2005; at the Arts and Humanities Research Council-funded workshop Gender Equality and Cultural Justice, University of Stirling, 2006, and at the conference Encountering Human Rights, University of Westminster, 2007. The author gratefully thanks participants who commented on those papers for their insights. For analysis of the Islamic headscarf cases alone see Marshall (2006b). For analysis of conditions for freedom and those cases, see Marshall (2008).

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  1. School of Law, Queen Mary, University of London, Mile End Road, London, E1 4NS, UK

    Jill Marshall

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Marshall, J. Women’s Right to Autonomy and Identity in European Human Rights Law: Manifesting One’s Religion. Res Publica 14, 177–192 (2008). https://doi.org/10.1007/s11158-008-9066-y

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