An (Un)Exceptional Case: Strasbourg’s Court Reserved Nod to Religious Symbols in the Courtroom

Abstract

Given the European Court of Human Rights (ECtHR) placid attitude towards state limitations on individual religious symbols, its recent judgment in Hamidovic v. Bosnia and Herzegovina, holding that the respondent state exceeded the margin of appreciation once a witness, a member of a fundamentalist Islamic group, was imprisoned for contempt of court after refusing to remove his headgear in the courtroom, appears exceptional. The exceptional nature of this judgment lies not only in the fact that the ECtHR held that an otherwise wide margin of appreciation granted to Council of Europe (CoE) states in matters involving state-religion issues was overstepped, but also in the fact that it is one of rare cases where the ECtHR more directly addressed the right of private individuals to wear religious symbols in the courtroom. Nevertheless, the Hamidovic judgment is narrowly confined, meticulously distinguished from earlier similar cases, and understandably distinguished from other potential cases on religious symbols, i.e., those involving the facial veil in the courtroom. Further, the majority opinion in Hamidovic did not clarify whether absence of clear regulations on a particular issue across CoE states is an indicator of the absence or presence of European consensus in matters related to religion. For two reasons, however, the Hamidovic judgment may just act as a weak signal of change. First, it fits the ECtHR’s tactics of using cases involving members of controversial religious groups and states with weak human rights records as experimental grounds for adjustment of its jurisprudence and a means to improve its own image. Second, the ECtHR is now carefully signaling its willingness to consider a disparate impact of state limitations on different religions and increase its evidentiary requirements on the adverse impact of religious symbols as a justification for limitations. The ECtHR’s recent judgment in Lachiri v. Belgium, disagreeing that a Belgian court can prohibit a party wearing a headscarf from attending a hearing, gives limited evidence for these two claims.