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The Margin of Appreciation Doctrine and the Case-Law of the European Court of Human Rights on the Islamic Veil

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Notes

  1. See (Yourow 1998); and by the same author The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence, The Hague, 1996, pp. 14–15. The European Court was the first international jurisdictional organ to apply the margin of appreciation doctrine, whose roots can be traced back to the jurisprudence of the French Council of State and to that of other equivalent national institutions, as a tool to review the legitimacy of the activities and of the discretionary powers of administrative authorities. See (Takahashi 2002). Although not expressly provided for in the institutive treaties of the Human Rights Committee and the African Human Rights Commission respectively, it was nevertheless applied in their jurisprudence, although to a much more limited extent. For instance, the Human Rights Committee applied it only in the Hertzberg et al. v. Finland (61/79) case, in which a certain discretionary power was recognised to the State on matters of public morals: the Committee believed that there was no unanimity on this subject amongst the States parties to the International Covenant on Civil and Political Rights. See (Joseph et al. 2004). More recently, the African Commission, too, referred to the margin of appreciation doctrine in the decision adopted during the ordinary session, which took place from 23 November to 7 December 2004, in the Garreth Anver Prince v. South Africa case. Although the Commission has not found a violation of the appellant’s freedom of religion, whom, when arrested for possession of cannabis, invoked respect for the principles of the Rastafarian religion from which the use of cannabis follows, it underlined the necessity of a strict interpretation of the margin of appreciation of States. See (Rubasha 2006).

  2. See (Gross and Aoláin 2001; O’Boyle 1998).

  3. It is well known that Ireland reported the violation by the United Kingdom of the European Convention by adopting a series of restrictive measures in order to face the threat of IRA. The Court, in that instance, had to establish, on the premises of a situation of national emergency, whether the adopted measures were “strictly required” by a specific situation. See (Brems 1996).

  4. Ibidem, pp. 250–251.

  5. Articles 8 to 11 protect the right to respect for private and family life (Article 8), the right to freedom of thought, conscience and religion (Article 9), the right to freedom of expression (Article 10) and the right to freedom of peaceful assembly and to freedom of association with others (Article 11). As widely known, paragraph 2 of these Articles is formulated in the same way and it provides for restrictions, unless prescribed by law and necessary in a democratic society in the interests of national security or public safety, for the protection of health or morals or for the protection of the rights and freedoms of others.

  6. See (Prebensen 1998).

  7. The applicant believed the decision of British authorities to confiscate the book he published on sexual education for teenagers, to be contrary to Article 10 of the European Convention, which protects the right to freedom of expression. National authorities held that the publication was irreconcilable with public morals. Although recognising a wide margin of appreciation to British authorities the Court did not find any violation of Article 10. Some years later, in the Dudgeon v. United Kingdom case, 22 October 1981, the European Court, on the same premises of public morals, has nevertheless found a violation of the Convention. The applicant, a homosexual, claimed a violation of Article 8 of the European Convention to the extent that a UK law provides for certain homosexual practices between consenting adults, to be a criminal offence punishable with a sentence of imprisonment. In this instance, too, the State justified its national legislation as necessary in a democratic society, among other things, in order to safeguard public morals. Although recognising a wide margin of appreciation to national authorities in a field where an accepted practice among States may not be found, it has nevertheless rejected the argument of the State’s authorities holding that, since it interfered with an intimate aspect of the private life of an individual, the restrictive measure was to be adopted only if necessary in facing “pressing social needs”. See (Brems 1996 pp. 258–259).

  8. The judges faced the question of restrictive measures on the freedom of the press, decided by the British judicial authorities against the publication of some news reports on the talidomide drug, considering that on the matter there still was a suit pending. See (Brems 1996, pp. 259–260).

  9. On the principle of proportionality, see (Takahashi 2002; Galetta 1999; Cremona 1995; Eissen 1993).

  10. See (Donoho 2001; Brems 1996, pp. 254–255). Although the European Court has not expressly granted any margin of appreciation in the enforcement of Article 3 of the Convention, it was held appropriate to distinguish between the assessment of facts and their juridical definition, in order to establish if States are recognised a discretionary power within the scope of Article 3. In particular, it was stressed how occasionally the Court finds that there is no violation of the prohibition of torture based “on the findings of the national authorities, not on their assessments” and that, conversely, on the question of “classifying legally” the facts established as acts of torture, the States may not benefit from a margin of appreciation. The same is true in the light of Article 2 of the European Convention which safeguards the right to life. See (Callewaert 1998). As far as the margin of appreciation in Article 2 is concerned, it is appropriate to recall the Evans v. United Kingdom judgment of the Grand Chamber of 10 April 2007. In this case, the Strasbourg judges have acknowledged to British authorities the discretionary power to legally determine the moment in which life starts, on the understanding that on the matter there is no consensus among States parties to the European Convention. They have therefore denied the violation of Article 2 on behalf of the United Kingdom in not recognising the rights of an embryo (cf. para. 54 of the judgment), available at http://www.echr.coe.int/ECHR/.

  11. See (Westerfield 2006; Prebensen 1998, pp. 13–17). The doctrine criticised what could be considered as a contradiction inherent to the margin of appreciation qualified by European consensus. In particular, it was underlined how if a wide margin of appreciation is granted and there, therefore, is not a rule the State is bound to comply with, the control of the Court would be expected to be less stringent compared to the event in which it had to establish whether the State had carefully complied with the European rule. See (Wachsmann 2000).

  12. On the principle of subsidiarity in the European Convention, see (Petzold 1993, pp. 41–62).

  13. On this premise, the theory according to which the margin of appreciation has two different meanings was elaborated by the doctrine. According to the first, i.e. the substantive concept, the margin of appreciation is applied by the Court with reference to the relationship between fundamental freedoms and collective goals. The instance being an interference of national authorities with the individual’s fundamental freedoms not constituting a violation of the European Convention. According to the second, i.e., the structural concept, the margin of appreciation would consist in the definition of the jurisdiction of the Court and of that of States. In this second instance, national authorities benefit of the margin of appreciation to the extent that the Court does not exercise a substantial review of the decision at domestic level. See (Letsas 2006).

  14. See (Mahoney 1998). It was moreover stated that the margin of appreciation is a purely functional necessity to the nature of the Court, being an instrument that allows to define the limits within which both the Court and the States parties can act. See (Olinga and Picheral 1995).

  15. See (Petzold 1993, p. 44).

  16. See (Mahoney 1998, p. 4).

  17. See (Brems 1996, pp. 240–314).

  18. See (Hutchinson 1999). The author has drawn a distinction between two possible models of the margin of appreciation. According to the first, the standards of the Convention represent a minimum level of guarantee below which the States cannot go. In this model, the margin of appreciation denotes the discretionary power of the States subject to the standards set by the European Court. According to the second model, the States benefit from a stronger discretionary power since it is up to them to interpret the provisions of the Convention and the manner in which to comply with them. In both cases, the margin of appreciation responds to the need to solve the question of sovereignty of Contracting States. Many, although agreeing in principle with the role of the margin of appreciation in safeguarding the sovereignty of States and in finding the right balance between the international obligations following from the Convention, have underlined the risk that the Court might avoid of explaining the reasons why its intervention might be more or less appropriate in a specific case. This because, if the margin of appreciation has a specific and necessary function because of the manner in which it is applied by the European Court, it appears to be more a justification principle rather than an interpretative one, i.e. an instrument necessary to justify the Courts solutions more than anything else, without any strictly juridical explanation. In short, it is as if resorting to the margin of appreciation granted to States could justify in itself one solution instead of another. See (Mcdonald R. St. J 1993, pp. 83–124). For a review of the theories stressing the need to safeguard the sovereignty of signatory States, see (Kastanas 1996). In particular, it was stated that the notion itself of margin of appreciation implies the existence of limitations which States cannot sidestep. This would entail that the discretionary power of national authorities is not sovereign since it is subject to (therefore limited by) the duty to comply with the Convention.

  19. See (Schokkenbroek 1998).

  20. See (Sapienza 1991). According to the author, the margin of appreciation is the result of concrete and inalienable needs ensuing from the formulation itself of some provisions and of the structure of the Convention, ibidem, p. 614. A similar conclusion, in the sense of the need to resort to the margin of appreciation should the rules be “uncertain” by nature, was reached by the doctrine after a more general analysis of the margin of appreciation, i.e. not limited exclusively to the European Court’s jurisprudence. See (Shany 2006).

  21. See (Sapienza 1991, pp. 604–605).

  22. See (Benvenisti 1999; Lambert 1998).

  23. See (Lavender 1997).

  24. In fact, it was highlighted how the Court sometimes uses European consensus in order to extend the margin of appreciation doctrine and others to reduce it, but without a coherent criterion, the consequence being that it is not used as a juridical instrument and instead it leads to judgments vague in contents. See (Brauch 2004; Gross and Aoláin 2001, pp. 625–649).

  25. See (Takahashi 2002, p. 249).

  26. However, the European Court tends to a progressive reduction of the recourse to the margin of appreciation and to the consequent assertion of independent notions within the limits of the European Convention. See (Kastanas 1996, pp. 439–444).

  27. See (Sweeny 2005; Donoho 2001, p. 462)

  28. See (Delmas-Marty and Izorche 2000).

  29. Ibidem.

  30. See (Brauch 2004, pp. 113–150; Gross and Aoláin 2001, pp. 625–649).

  31. On the jurisprudence of the European Court on the Islamic veil cf. (Marshall 2008).

  32. Although in theory the concept of margin of appreciation does not change according to the rights and freedoms granted by the European Convention, the doctrine has stressed how in the Strasbourg jurisprudence, concerning the restrictions provided for in Article 9, paragraph 2, a wide margin of discretion was recognised to States because of the awareness shown by the European Court, that the question of the relationship between State and religion is rather delicate and controversial in each State. See (Evans 2003; Prebensen 1998, pp. 13–17). For a review of the excessive breadth of the margin of appreciation in relation to Article 9 of the European Convention, see (Edge 1998).

  33. Applications no. 43563/08, no. 14308/08, no. 18527/08 and no. 29134/08, respectively. The text of the judgments and of other admissibility decisions that will be later analysed, are available on the European Court website at http://www.echr.coe.int/ECHR/.

  34. Cf. p. 7 of the decisions.

  35. Cf. p. 9 of the decisions.

  36. Ibidem.

  37. Cf. p. 10 of the decisions.

  38. Applications nos. 27058/05 and 31645/04, respectively.

  39. Cf. paras. 49-59, 68, 77-78.

  40. Cf. para. 71.

  41. Application no. 44774/98, Grand Chamber judgment, November 10, 2005. On the Şahin case, see (Belelieu 2006; Burgorgue-Larsen 2005; Evans 2006; Marshall 2006; Skach 2006; Bleiberg 2005; E. D. 2005; Decker and Lloyd 2004).

  42. For a comparative analysis of the Islamic veil question, see (MacGoldrick 2006); see also the monographic section Il problema delle manifestazioni di credo religioso nella vita pubblica (by Sicardi S., Viviani Schlein M. P.), in Diritto Pubblico Comparato Europeo, 2005, pp. 127–318.

  43. Cf. para. 110 of the judgment. In particular, in delimiting the extent of the margin of appreciation, the Court held that it had to take into account the need to protect the rights and freedoms of others, to preserve public order and to guarantee an actual religious pluralism “which is vital to the survival of a democratic society”.

  44. Cf. para. 111 of the judgment. Also in relation to Article 2 of Protocol I annex to the European Convention, protecting the right to education, the Court has found no violation on the analogy of the considerations on the alleged violation of Article 9 of the Convention (para. 157 of the judgment).

  45. On the question of the case law of the European Court on the Islamic veil, see (Brandolino 2006; Cuccia 2006; Tega 2005; Bribosia and Rorive 2004; Baines 1996).

  46. Cf. decision no. 16278/90 and no. 18783/9, 3 May 1993, respectively.

  47. Cf. item 2 of the decision.

  48. Decision no. 42393/98, 15 February 2001. For a comment on the subject see (Chauvin 2003; Deffains 1998).

  49. At p. 15.

  50. At p. 14.

  51. Ibidem.

  52. Decision no. 26625/02, 24 January 2006. The plaintiffs, who attended some İmam-Hatip schools in Istanbul, where a secondary religious education is given, were forbidden to wear the veil. The Court has analysed the alleged violation of the right to education provided for by Article 2 of Protocol I, then it has extended the alleged violation to freedom of religious expression. The Court stressed again the legitimate goal of national authorities to preserve the neutrality of secondary education addressed to teenagers susceptible to pressures and concluded, bearing in mind the margin of appreciation of Turkish authorities, that the restrictive measure was justified and proportionate to the goal of protecting the rights and freedoms of others as well as public order. Based on the statements on freedom of religious expression, the judges held that, although allowing for an interference with the freedom of the plaintiffs under Article 9, paragraph 1, of the Convention, the veil ban had not violated their religious freedom under Article 9, paragraph 2 (at pp. 13-16).

  53. Decision no. 65500/01, 24 January 2006.

  54. At pp. 7–8.

  55. For the review of the “vague” reasoning of the European Court in the Şahin case, see (Skach 2006, pp. 186–196; Bleiberg 2005, pp. 129–169; Chauvin 2003, pp. 536–542; Evans 2003, pp. 52–73; Deffains 1998, pp. 203–250).

  56. See (Belelieu 2006, p. 614). See also (Lerner 2005).

  57. See (Bleiberg 2005, p. 129).

  58. Ibidem, p. 152.

  59. See (Marshall 2006, pp. 452–461).

  60. See Evans 2006, The ‘Islamic Scarf’, cit., p. 65.

  61. Ibidem, p. 67. The author referred to a study on young Muslim women working in Canada, which reveals their frustration for the idea that the veil is a symbol of oppression of women. (Hoodfar 1997), where the author criticises the prejudice on the nature of the veil as a racist and colonialist one. He underlines how, while from a western standpoint the meaning of the veil is unchanged and static, in Muslim cultures the social meaning of the veil and its function have changed deeply. See also, (Shirazi 2000; Stimpfl 2000, pp. 169–182; Poulter 1997).

  62. Cf. para. 4 of the dissenting opinion.

  63. Cf. para. 5 of the dissenting opinion.

  64. Cf. para. 12 of the dissenting opinion. On the concept of equality cf. more recently (Debouché 2009).

  65. Cf. (Custos 2004).

  66. The data on the principle of secularism in European States is reported in the French Stasi Commission Report, available at http://www.fil-info-france.com/actualites-monde/rapport-stasi-commission-laicite.htm.

  67. Cf. application no. 45701/99, para. 116 of the decision.

  68. Cf. para. 123 of the decision.

  69. This principle also implies, in the opinion of the Court, the obligation on the State to refrain from imposing even indirectly religious denominations in the places where people depend on it, such as in classrooms. In this sense, the Court held in the Lautsi v. Italy case (application no. 30814/06), of 3 November 2009, that the exposure of the crucifix in classrooms in Italy involves a violation of Article 9 of the Convention, in conjunction with Article 2 of Protocol I, to the extent that it interferes with the rights of parents to educate their children according to their religious convictions, as well as with the right of students to be free to believe or not in a particular religion (para. 57). Such restrictions, the Court stated, are to be considered incompatible with the duty of the State to respect neutrality in the exercise of public functions, especially in education.

  70. Cf. application no. 18748/91, para. 47 of the judgment.

  71. See (Evans 2008).

  72. At p. 7.

  73. Ibidem.

  74. Ibidem.

  75. At pp. 6–7.

  76. At p. 7.

  77. At p. 14.

  78. Ibidem.

  79. At pp. 7–8.

  80. See (Fontana 2002).

  81. The European Court also dealt with the inconsistency of the Sharia with European democratic values in the Gunduz v. Turkey case (35071/97), December 4, 2003, in which a religious leader was sentenced to two years imprisonment for openly criticising secularism during a public broadcast, invoking a Muslim State where the Sharia be enforced. The Court held that Turkey had violated Article 10 of the European Convention dealing with freedom of expression, on the premise that a concrete case of enforcement of the Sharia had to be distinguished from the case where one limits himself to expressing his own opinion in public; especially when others are likewise granted the opportunity to express their own views, even if clearly different from the ones of the plaintiff. On the relationship between Sharia and democratic values, the Court has established a deep inconsistency on the grounds that the first adopts principles of criminal law and of criminal procedure, such as the discriminatory position of women within the legal system and the compulsory adjustment of all aspects of public and private life to religious precepts (cf. para. 51 of the judgment). On freedom of expression and the margin of appreciation, see (Wachsmann 2000, p.1017). On the question of inconsistency of the Sharia with the European Convention, see (Gallala 2006).

  82. Cf. para. 73 of the Chamber’s judgment.

  83. On the Islamic veil debate in Germany see (Sacksofsky 2008).

  84. See (Fogel 2006; Campenhausen 2004; Derosier 2003; Randazzo 2004).

  85. Cf. paras. 50–51 of the judgment, at http://www.bverfg.de/entscheidungen/rs20030924_2bvr143602.html. For the English version cf. http://www.bverfg.de/entscheidungen/rs20030924_2bvr143602en.html. The most significant passages are reported in Italian, in Luther J., Il velo scoperto dalla legge: profili di giurisprudenza costituzionale comparata, in (Ferrari 2006). Based on the psychological valuations ordered by the Tribunal it was shown that many young women wear the veil to preserve their own identity in a situation of diaspora and to respect their parents’ tradition. The Court has therefore concluded that due to a variety of motivations, the interpretation of the veil cannot be reduced to a sign of social oppression of women.

  86. Cf. para. 54 of the judgment.

  87. Available at http://jurist.law.pitt.edu/paperchase/2006/07/german-state-court-rejects-headscarf.php.

  88. Available at http://jurist.law.pitt.edu/paperchase/2007/06/germany-court-upholds-teacher-headscarf.php.

  89. Available at http://jurist.law.pitt.edu/paperchase/2008/03/germany-state-court-upholds-teacher.php.

  90. The debate on the Islamic veil ban has recently drawn the United Kingdom’s attention. In the 22 March 2006 judgment relating to the R v. Headteacher and Governors of Denbigh High School, the House of Lords held legitimate the decision of a London High School to forbid the plaintiff to wear the Islamic veil, because it did not interfere with her religious freedom in accordance with Article 9, paragraph 1, of the European Convention. It is worth remembering that the reasoning behind this decision was that the plaintiff could have chosen to attend a different school where she would have been allowed to wear the veil. For an analysis of the House of Lords judgment, see (Di Stefano 2007). More recently, in a judgment of 21 February 2007, the British High Court of Justice, Queen’s Bench Division, came to the same conclusion on the prohibition to wear the niqab, a full veil covering the face. Although this veil also posed some questions as to a person’s identification in school, the High Court Judges concluded that such ban did not constitute a restriction on religious freedom according to Article 9, paragraph 1, of the European Convention, since the plaintiff could have chosen to attend a different school where she could have worn a niqab, which had actually been proposed to her (in http://www.judiciary.gov.uk/docs/judgments_guidance/x_v_y_school_full210207.pdf). Following the British judgment, in March 2007 the Minister of Education of the United Kingdom adopted a new policy guidance with which has conferred on school principles the power to ban the use of the Islamic veil in school, holding that it is up to head teachers to decide if the veil affects the learning abilities or the participation to debates of students due to security reasons (at http://www.guardian.co.uk/uk/2007/mar/20/schools.religion). In the United Kingdom, the question was not that of a concrete risk of the affirmation of fundamentalist Islamic movements and it was not therefore approached in terms of the meaning and/or of the symbolic value it may acquire within a specific context. To the contrary, in a different context such as the British one, national authorities took into account the implications of the veil in a restricted context such as that of a school where specific needs may require the ban of the veil, but on the premise that in another British school different requirements, compatible with the use of the veil, even the full veil, may exist and a student may be free to wear it.

  91. Cf. para. 107 of the Grand Chamber judgment.

  92. Cf. para. 115 of the Grand Chamber judgment in the Şahin case, where the holdings of the Chamber’ judgment were drawn upon and p. 14 of the decision in the Dahlab case.

  93. See Luther J., Il velo scoperto dalla legge: profili di giurisprudenza costituzionale comparata, cit., pp. 63-92. The first obligation to wear the veil was documented during the Assyrian Reign. According to the Italian canon law, canon 1262 § 2 of the 1917 code, prescribed that “men must attend mass, both in church and outside, with a bare head, unless local customs or special circumstances raise an obstacle to it. Women, on the other hand, must wear a veil (capite cooperto) and wear unpretentious clothes, especially when they approach the Lord’s supper”.

  94. Ibidem.

  95. Cf. (Luther 2006, pp. 68–69). See also, (Pacillo 2006; Önok 2005).

  96. At p. 15. It must be highlighted that the same expression was adopted by the European Court in the recent judgments of the Dogru v. France and Kervanci v. France cases. See footnote 38.

  97. Cf. para. 111 of the Grand Chamber judgment in the Şahin case.

  98. See (Taylor 2006).

  99. Kokkinakis v. Greece, application no. 14307/88, para. 48, pp. 16–17.

  100. The law of 15 March 2004, enforcing the principle of neutrality of the State, forbids to wear in schools any symbol or garment that openly manifest the students’ religious beliefs. This law applies to all faiths, not only to the Muslim one, but, most of all, it applies to all public schools, except for universities. On the Islamic veil question in France see (Bowen 2007; Lovejoy 2006; Wing 2005; Beller 2003; Le Tourneau 1997; Poggeschi 1995).

  101. Cf. paras. 52 e 59 of the judgments.

  102. The most significant passages of the 1989 opinion are reported in para. 26 of the European Court judgments.

  103. Cf. para. 29 of the judgments.

  104. Ibidem.

  105. Cf. paras. 58-59 of the judgments.

  106. Cf. para. 66 of the judgments.

  107. Cf. para. 68 of the judgments.

  108. Cf. paras. 70-71 of the judgments.

  109. The Parliament’s Resolution was adopted on the basis of the Camiel EURLINGS Report with 429 votes in favour, 71 against and 125 abstentions, at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2006-0381+0+DOC+XML+V0//EN. See also the doubts expressed by the Special Rapporteur of the Human Rights Commission of the United Nations on the secular nature of Turkey. In 2000, it has presented an interim report on the elimination of all forms of religious intolerance and of discrimination based on religion or belief. The flaunted neutrality of Turkey was hereby questioned recommending with regards to the Islamic veil the protection of freedom of clothing within acceptable limits and inviting to the observance of the law confronted by the concern of a political exploitation of religion. See Interim Report of the Special Rapporteur of the Commission on Human Rights on the elimination of all forms of intolerance and of discrimination based on religion or belief, August 11, 2001, in A/55/280/Add.1. See (Brandolino 2006, pp. 105–114; Bleiberg 2005, p. 153).

  110. Available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2007-0063+0+DOC+XML+V0//EN.

  111. Available at http://www.iht.com/articles/2007/01/11/news/germany.php.

  112. In her opinion, Ruth Wedgwood has expressed uncertainty as to the judgment in the Şahin case, whereas in her view the European Court should have established concretely whether the Islamic veil could interfere with the daily activities of the university attended by the plaintiff. For the Committee’s opinion, see Un Doc. CCPR/C/82/D/931/2000 (2005). See (Amicarelli 2005). On the general question of the Islamic veil ban, the Quebec Human Rights Committee stated that “one should presume that hijab-wearers are expressing their religious convictions and the hijab should only be banned when it is demonstrated—and not just presumed—that public order or sexual equality is in danger”. The Committee’s declarations are reported in (Baines 1996, pp. 303–327).

  113. Cf. para. 63 of the Grand Chamber judgment. It is well-known that some types of veil, like the burqa and the niqab, which pose objective identification problems since they cover completely both the head and the body of women, are distinguishable only because the first has a window with a net over the eyes and the second two holes in the same position. Then there is the chador, particularly common in Iran, which covers the whole body and is buttoned up under the chin leaving the face uncovered, and the hijab, which covers the hair, the neck and the chest leaving both the face and body uncovered. As to the appeals against Turkey, the European Court, only in the Şahin judgment, 29 June 2004, dealt with the different types of veil concluding that it is difficult to reconcile all forms of veil deriving from the same religion with the neutrality principle of the State (cf. para. 92 of the Chamber’s judgment in the Şahin case).

  114. Available at http://jurist.law.pitt.edu/paperchase/2006/11/netherlands-government-to-push-for.php.

  115. Available at http://www.interno.it/news/articolo.php?idarticolo=24068.

  116. On 14 July 2007, because of the alleged violation of Article 5 of law no. 152, 22 May 1975, Cremona’s Attorney General committed for trial the wife of the ex imam of Cremona accused of international terrorism, since she was wearing a burqa in the courtroom during her husband’s trial, available at http://www.corriere.it/Primo_Piano/Cronache/2007/07_Luglio/14/burqa_processo.shtml.

    The circular of the Home Office of 24 July 2000, on residence permits, in which it is specified that for the issuing of ID cards pictures with a head cover are allowed only if face features are visible. In the fourth subsection, the circular examines the possibility that the covering of the head with a headscarf, turban or other, is prescribed by religion, providing that in this case the turban, the chador or even the veil, as in the case of nuns, are an integral part of their garments and contribute, as a whole, to identify those who wear them, as long as the face is uncovered. On the basis of the constitutional law protecting religious freedom and beliefs, ID documents pictures where the person is portrayed with a head covering, are therefore allowed as long as face features are clearly visible.

  117. On 12 July 2004 the Mayor of Dresso (Como) adopted an ordinance banning the chador on the basis of Article 85 of the 1931 royal decree and to Article 5 of the 1975 law. On 19 September 19, 2004 the Prefect of Como nullified the ordinance by reason of “inconsistency and violation of the law”, holding that the Mayor’s ordinance power does not subsist on this matter and in order to avoid disorientation and confusion in a particularly complex legal system. See (Musselli 2005). In the judgment no. 645 of October 16, 2006, the Friuli Venezia Giulia TAR, before which the Dresso Council had impugned the Prefect’s Nullification Decree, rejected the claim of the Council as groundless. With reference to Article 5 of the 22 May 1975, law no. 152, where the “veil which covers the face”, is mentioned, the Tribunal declared that “as to this section the legal provision quoted is subject to novation beyond dispute. In fact, to the legal requirement not to use means hindering the identification of a person, the Mayor’s order to consider as such—regardless of any other interpretation—also traditional Islamic veils such as burqas and chadors is overlapped. But it is obvious that regardless of the single cases, in which a public security official has to evaluate depending on the case if the legal requirement is met, a general prohibition to circulate in public wearing this sort of covering can derive only from a law stating it specifically, which on the other hand is in line with the political implications of such a decision”. The judgment is available at http://www.eius.it/giurisprudenza/2006/116.asp.

  118. As to public morals, a question that also the European Court held to be lacking States’ consensus—therefore revealing the grounds for recognising a margin of appreciation to national authorities—the conclusions have not always been the same. To the contrary, although recognising the discretionary power of the State, it affirmed that in the Dudgeon case the United Kingdom violated Article 8 of the European Convention otherwise from what stated in the Handyside case as to Article 10. In other words, the Court has admitted that the discretionary power of the State, in relation to a matter not expressly mentioned by the Convention, had to be evaluated on a case-to-case basis and that it would not lead to the same conclusion in all instances.

References

  • Amicarelli A., La questione del velo islamico tra ordinamenti nazionali e giurisdizioni internazionali, in I diritti dell’uomo. Cronache e Battaglie, 2005, pp. 32–39

  • Baines C. D., L’Affaire des Foulards — Discrimination or the Price of a Secular Public Education System?, in Vanderbilt Journal of Transnational Law, 1996, pp. 303–327

  • Belelieu C. D., 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 Şahin Judgement, in Columbia Journal of European Law, 2006, pp. 573–624

  • Beller E. T., The Headscarf Affair: The Conseil d’État on the Role of Religion and Culture in French Society, in Texas International Law Journal, 2003-2004, pp. 581–624

  • Benvenisti E., Margin of Appreciation, Consensus, and Universal Standards, in New York University Journal of International Law and Politics, 1999, pp. 843–854

  • Bleiberg B. D., Unveiling the Real Issue: Evaluating the European Court of Human Rights’ Decision to Enforce the Turkish Headscarf Ban in Leyla Şahin v. Turkey, in Cornell Law Review, 2005, pp. 129–169, 153

  • Bowen J. R., Why the French Don’t Like Headscarves, Princeton, 2007

  • Brandolino E., La Corte europea dei diritti dell’uomo e l’annosa questione del velo islamico, in Diritto Pubblico Comparato Europeo, 2006, pp. 105–114

  • Brauch J. A., The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights, in The Columbia Journal of European Law, 2004-2005, pp. 113–150

  • Brems E., The Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights, in Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht, 1996, pp. 240–314, 242–243, 254–255, 257–259, 258–259, 259–260.

  • Bribosia E., Rorive I., Le voile à l’école: une europe divisée, in Revue Trimestrielle des Droits de l’homme, 2004, pp. 951–983

  • Burgorgue-Larsen L., Le port du voile à l’université. Libres propos sur l’arrêt de la Grande Chambre Leyla Şahin c. Turquie du 10 novembre 2005, in Revue Trimestrielle des Droits de l’Homme, 2006, pp. 183–215

  • Callewaert J., Is There a Margin of Appreciation in the Application of Articles 2, 3 and 4 of the Convention?, in Human Rights Law Journal, 1998, pp. 6–9

  • Campenhausen A. von, The German Headscarf Debate, in Brigham Young University Law Review, 2004, pp. 665–699

  • Chauvin N., Le port du foulard islamique par une enseignante, in Revue Française de droit Administratif, 2003, pp. 536–542

  • Cremona J. J., The Proportionality Principle in the Jurisprudence of the European Court of Human Rights, in Beyerlin U., Bernhardt R., Recht Zwischen Umbruch und Bewahrung, Springer, Berlin; 1995, pp. 323–330

    Google Scholar 

  • Cuccia V., La manifestazione delle convinzioni religiose nella giurisprudenza della Corte Europea dei Diritti dell’Uomo, in La Comunità Internazionale, 2006, pp. 574–575

  • Custos D., Secularism in French Public Schools: Back to War? The French Statute of March 15, 2004, in American Journal of Comparative Law, 2006, pp. 337–400

  • Debouché R., The Substance of Substantive Equality: Gender Equality and Turkey’s Headscarf Debate, in American University International Law Review, 2009, pp. 711–737

  • Decker D. C., Lloydd M., Leyla Şahin v. Turkey, in European Human Rights Law Review, 2004, pp. 672–678

  • Deffains N., Le principe de laïcité de l’enseignement public à l’épreuve du foulard islamique, in Revue Trimestrielle des Droits de l’Homme, 1998, pp. 203–250

  • Delmas-Marty M., Izorche M. L., Marge nationale d’appréciation et internationalisation du droit. Réflexions sur la validité formelle d’un droit commun pluraliste, in Revue Internationale de Droit Comparé, 2000, pp. 753–780

  • Derosier J. P., La Cour constitutionnelle allemande et le port du voile, commentaire de l’arrêt du 24 septembre 2003, in Revue Française de Droit Constitutionnel, 2004, pp. 439–447

  • Di Stefano A., Il velo islamico a scuola. Il punto di vista della Camera dei Lords, in Diritti Umani e Diritto Internazionale, 2007, pp. 173–186

  • Donoho D. L., Autonomy, Self-Governance, and the Margin of Appreciation: Developing a Jurisprudence of Diversity Within Universal Human Rights, in Emory International Law Review, 2001, pp. 391–466, 462

  • E. D., Interdiction du foulard islamique dans les universités, in Journal du Droit International, 2005, pp. 529–531

  • Edge P. W., The European Court of Human Rights and Religious Rights, in International and Comparative Law Quarterly, 1998, pp. 680–687

  • Eissen M. A., The Principle of Proportionality in the Case-Law of the European Court of Human Rights, in Macdonald R. St. J., Matscher F., Petzold H., (ed.), The European System for the Protection of Human Rights, Dordrecht, 1993, pp. 125–146

  • Evans C., The ‘Islamic Scarf’ in the European Court of Human Rights, in Melbourne Journal of International Law, 2006, pp. 52-73

  • Evans C., Freedom of Religion under the European Convention on Human Rights, Oxford, 2003, pp. 143–145

  • Evans M. E., Manual on the Wearing of Religious Symbols in Public Areas, Council of Europe Publishing, 2008, p. 43 ff

  • Ferrari S. (a cura di), Islam ed Europa. I simboli religiosi nei diritti del Vecchio Continente, Roma, 2006, pp. 63–92

  • Fogel R. S., Headscarves in German Public Schools : Religious Minorities are Welcome in Germany, Unless-God Forbid-They are Religious, in New York Law School Law Review, 2006-2007, pp. 620–653

  • Fontana G., La tutela costituzionale della società democratica tra pluralismo, principio di laicità e garanzia dei diritti fondamentali. (La Corte europea dei diritti dell’uomo e lo scioglimento del Refah Partisi), in Giurisprudenza Costituzionale, 2002, pp. 379–394

  • Galetta D. U., Il principio di proporzionalità nella Convenzione europea dei diritti dell’uomo, fra principio di necessarietà e dottrina del margine di apprezzamento statale: riflessioni generali su contenuti e rilevanza effettiva del principio, in Rivista Italiana di Diritto Pubblico Comunitario, 1999, pp. 743–771

  • Gallala I., The Islamic Headscarf: An Example of Surmountable Conflict Between Shari’a and the Fundamental Principles of Europe, in European Law Journal, 2006, pp. 593–612

  • Gross O., Aoláin F. N., From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights, in Human Rights Quarterly, 2001, pp. 625–649

  • Hutchinson M. R., The Margin of Appreciation Doctrine in the European Court of Human Rights, in International and Comparative Law Quarterly, 1999, pp. 638–650

  • Joseph S., Schultz J., Castan M., The International Covenant on Civil and Political Rights. Cases, Material, and Commentary, Oxford, 2004, pp. 526–529

  • Kastanas E., Unité et diversité: notions autonomes et marge d’appréciation des États dans la jurisprudence de la Cour Européenne des Droits de l’Homme, Bruxelles, 1996, p. 238, 439–444

  • Lambert P., Marge nationale d’appréciation et côntrole de proportionnalité, in Sudre F. (dir.), L’interprétation de la Convention européenne des droits de l’homme, Bruxelles, 1998, pp. 63–89

  • Lavender N., The Problem of the Margin of Appreciation, in European Human Rights Law Review, 1997, pp. 380–390.

  • Le Tourneau D., La laïcité à l’épreuve de l’Islam: le cas du port du «foulard islamique» dans l’école publique en France, in Revue Générale de Droit, 1997, pp. 275–306

  • Lerner N., International Law and Religion: How Wide the Margin of Appreciation? The Turkish Headscarf Case, the Strasbourg Court, and Secularist Tolerance, in Willamette Journal of International Law & Dispute Resolution, 2005, pp. 65–85.

  • Letsas G., Two Concepts of the Margin of Appreciation, in Oxford Journal of Legal Studies, 2006, pp. 705–732

  • Lovejoy C. D., A Glimpse into the Future: What Sahin v. Turkey Means to France’s Ban on Ostensibly Religious Symbols in Public Schools, in Wisconsin International Law Journal, 2006, pp. 661–698

  • Luther J., Il velo scoperto dalla legge: profili di giurisprudenza costituzionale comparata, cit., 2006 pp. 63-92, part. pp. 68–69

  • MacGoldrick D., Human Rights and Religion. The Islamic Headscarf debate in Europe, Oxford, 2006

  • Mahoney P., Marvellous Richness of Diversity or Invidious Cultural Relativism?, in Human Rights Law Journal, 1998, pp. 4, 1–6

  • Marshall J., Freedom of Religious Expression and Gender Equality: Şahin v. Turkey, in The Modern Law Review, 2006, pp. 452–461

  • Marshall J., Conditions for Freedom? European Human Rights Law and the Islamic Headscarf Debate, in Human Rights Quarterly, 2008, pp. 631–654

  • Mcdonald R. St. J., The Margin of Appreciation, in Mcdonald R. St. J., Matscher F., Petzold H., (ed.), The European System for the Protection of Human Rights, 1993, cit., pp. 83–124

  • Musselli L., Le manifestazioni di credo religioso nella realtà multiculturale italiana, in Diritto Pubblico Comparato Europeo, 2005, pp. 208–220

  • O’Boyle M., The Margin of Appreciation and Derogation under Article 15: Ritual Incantation or Principle?, in Human Rights Law Journal, 1998, pp. 23–29.

  • Olinga A. D., Picheral C., La théorie de la marge d’appréciation dans la jurisprudence récente de la Cour européenne des droits de l’homme, in Revue Trimestrielle des Droits de l’Homme, 1995, pp. 567–604

  • Önok R. M., Turkish Legislation and Jurisprudence Regarding the Wearing of the Islamic Headscarf in the Framework of the Principle of Laiklik, in Il Diritto Ecclesiastico, 2005, pp. 989-1026, partic. pp. 1008–1009

  • Pacillo V., Pasquali Cerioli J., I simboli religiosi, Torino, 2006

  • Petzold H., The Convention and the Principle of Subsidiarity, in Mcdonald R. St. J., Matscher F., Petzold H., (ed.), The European System for the Protection of Human Rights, 1993, cit., pp. 44, 41–62

  • Poggeschi G., Il velo islamico in Francia: un problema di una società multietnica, in Quaderni Costituzionali, 1995, pp. 287–302

  • Poulter S., Muslim Headscarves in School: Contrasting Legal Approaches in England and France, in Oxford Journal of Legal Studies, 1997, pp. 43–74.

  • Prebensen S. C., The Margin of Appreciation and Articles 9, 10 and 11 of the Convention, in Human Rights Law Journal, 1998, pp. 13–17.

  • Randazzo B., L’insegnante col velo alla Corte di Karlsruhe, in Quaderni Costituzionali, 2004, pp. 147–149

  • Rubasha H., Accommodating Diversity: Is the Doctrine of Margin of Appreciation as Applied in the European Court of Human Rights Relevant in the African Human Rights System?, 27 October 2006, available at https://www.up.ac.za/dspace/bitstream/2263/1228/1/rubasha_h_1.pdf.

  • Sacksofsky U. , Religion and Equality in Germany: the Headscarf Debate from a Constitutional Perspective, in Schiek D., Chege V. (eds.), European Union Non-Discrimination Law: Comparative Perspectives on Multidimensional Equality Law, London, 2008, pp. 353–370

  • Sapienza R., Sul margine d’apprezzamento statale nel sistema della Convenzione europea dei diritti dell’uomo, in Rivista di Diritto Internazionale, 1991, pp. 571–614, 604–605

  • Schokkenbroek J., The Basic, Nature and Application of the Margin-of-Appreciation Doctrine in the Case-Law of the European Court of Human Rights, in Human Rights Law Journal, 1998, pp. 30–36.

  • Shany Y., Toward a General Margin of Appreciation Doctrine in International Law?, in European Journal of International Law, 2006, pp. 907–940

  • Shirazi F., Islamic Religion and Women’s Dress Code: The Islamic Republic of Iran, in Arthur L. (ed.), Undressing Religion: Commitment and Conversion from a Cross-Cultural Perspective, 2000, pp. 113–130

  • Skach C., Şahin v. Turkey; “Teacher Headscarf” Case, in American Journal of International Law, 2006, pp. 186–196

  • Stimpfl J., Veiling and Unveiling: Reconstructing Malay Female Identity in Singapore, ibidem, 2000, pp. 169–182

  • Sweeny J. A., Margin of Appreciation: Cultural Relativity and the ECHR in the Post-Cold War Era, in International and Comparative Law Journal, 2005, pp. 459–474

  • Takahashi Y. A. The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR, 2002, cit. pp. 3, 249

  • Taylor P. M., The Questionable Grounds of Objections to Proselytism and Certain Other Forms of Religious Expression, in Brigham Young University Law Review, 2006, pp. 811–836

  • Tega D., La laicità turca alla prova di Strasburgo, in Diritto Pubblico Comparato Europeo, 2005, pp. 289–300

  • V. Hoodfar H., The Veil in Their Minds and on Our Heads: Veiling Practices and Muslim Women, in Lowe L., Lloyd D., The Politics of Culture in the Shadow of Capital, 1997, pp. 248–279

  • Wachsmann P., Une certaine marge d’appréciation. Considérations sur les variations du contrôle européen en matière de liberté d’expression, in Le droits de l’homme au seuil du troisième millénaire. Mélanges en hommage à Pierre Lambert, Bruxelles, 2000, pp. 1017–1042

  • Westerfield J. M., Behind the Veil: An American Perspective on the European Headscarf Debate, in American Journal of Comparative Law, 2006, pp. 637–678

  • Wing A. K., Smith M. N., Critical Race Feminism Lifts the Veil?: Muslim Women, France, and the Headscarf Ban, in University of California Davis Law Review, 2005-2006, pp. 743–785

  • Yourow H. C., The Margin of Appreciation Doctrine in the Dynamics of the Strasbourg Jurisprudence and the Constitution of Europe, in Zeitschrift für Europarechtliche Studien, 1998, pp. 233–248

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Nigro, R. The Margin of Appreciation Doctrine and the Case-Law of the European Court of Human Rights on the Islamic Veil. Hum Rights Rev 11, 531–564 (2010). https://doi.org/10.1007/s12142-010-0161-z

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