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Religious/belief symbols

KEY FINDINGS

1.      While in most countries there are no general restrictions on wearing RBSs in the workplace or in public spaces, Austria, Belgium and France have enacted provisions that prevent people from circulating in public spaces with one's face covered, thus limiting the right of Muslim women to wear burqas or niqabs.

2.      In Belgium and France public employees cannot wear RBSs in the workplace.

3.      In France and Hungary the display of RBSs by prisons, healthcare facilities and barracks is forbidden. In Austria, Greece, Italy, Romania, Spain, where there is no regulation that imposes or forbids the display of RBSs by these institutions, the symbols of the majority religion are frequently displayed.

4.      Equal treatment is better ensured if there are no restrictions on the wearing of RBSs in the workplace or in public spaces, and no obligations to officially display RBSs in prisons, hospitals and barracks.

RECOMMENDATIONS

1.     General bans of the right to wear and/or display RBSs in public spaces and in the workplace may easily result in discrimination of RBMs and should therefore be avoided.

2.     States should encourage the pursuit of solutions through the involvement of all stakeholders.. A general ban on the displaying of religious / belief symbols by public institutions, as well as a general obligation to display the symbols of the majority religion only, does not amount to a promotion of RBM rights.

RISKS OF DISCRIMINATION

In Austria, Belgium, and France, a general ban on the wearing of religious symbols that cover the face in public places -regardless of whether the limitations prescribed by article 9.2 ECHR apply- is in force. Although an international standard cannot be clearly identified as the case-law of international courts and bodies is not consistent, such ban may easily become a cause of discrimination. 

INTERACTIVE INFOGRAPHICS

1 promotion of rights
0 respect of international standards
-1 restrictions of rights
1 low equal treatment of RBMs
0 equal treatment of RBMs
0 no gap between religious majority and minorities
-1 high gap between religious majority and minorities
1 promotion of rights
0 respect of international standards
-1 restrictions of rights
1 low equal treatment of RBMs
0 equal treatment of RBMs
1 promotion of rights
0 respect of international standards
-1 restrictions of rights
0 no gap between religious majority and minorities
-1 high gap between religious majority and minorities

WHAT WE ARE TALKING ABOUT

 

In the EU countries the issue of RBSs has become topical in the last 30 years. At first it concerned female students wearing the Islamic headscarf at school, then women wearing burqas or niqabs in public places or in the workplace, and later the issue of the crucifix displayed in classrooms, not to mention the request of Pastafarians to have the colander recognized as their religious symbol. After years of legislative interventions and conflicting court decisions, a certain consensus has been reached on three points: wearing or displaying RBSs constitutes a manifestation of freedom of religion or belief which is protected by Art. 9 ECHR; when certain conditions are met, however, it is lawful to limit or prohibit the exercise of this right; in any case, these limitations must not cause discrimination.  In most countries of the European Union, the issue of RBSs is addressed through case law: the judge is in the best position to seek a "reasonable accommodation" between the different stakeholders. Only a few states have tried to solve the problem through the lawmaker's intervention: in most EU countries there are no rules prohibiting or authorizing the display of RBSs. The fact that the Atlas data are predominantly derived from the analysis of legislation explains why the results concerning RBSs are similar in many countries. These data therefore need to be supplemented by the examination of case law (which is outside the research scope of the Atlas).

According to international standards, wearing religious symbols is a manifestation of the right to freedom of religion or belief (CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), CCPR/C/21/Rev.1/Add.4, 1993, no. 6; Guide on article 9 of the European Convention on Human Rights, Strasbourg, Council of Europe/European Court of Human Rights, 2021, p. 32). Wide limitations may be legitimately applied on a number of grounds, including safety and secularism (Guide on art. 9, p. 32, 36). Limitations “may not be imposed for discriminatory purposes or applied in a discriminatory manner” (CCPR, General Comment n. 22, No. 8).    

RBSs in the workplace (clusters A-B)

The right to wear and/or display RBSs in the workplace is subject to different conditions depending on whether the employer is a public or private subject. If the employer is public, some states prohibit the wearing or display of RBSs on the basis of the principle of neutrality of public institutions; if private, the potential of any RBSs worn or displayed by an employee to damage the interests of the company is of central importance. Recently, the Court of Justice of the European Union has extended the application of the neutrality principle to the private sector, potentially reducing the right to wear or display RBSs (Judgment in Joined Cases C-804/18 and C-341/19 WABE and MH Müller Handel).  The courts have examined the cases before them from two points of view: on the one hand, respect for freedom of religion, and on the other, prohibition of discrimination. The combination of these two criteria has not always been smooth.

Generally speaking, the Atlas considered that the RBM rights are better promoted when there are no legislative provisions denying or limiting a priori the right to wear and/or display RBSs, leaving the field open to judges' evaluation. For this reason, a negative score (ranging, depending on the case, from -1 to -0.50) was given to those countries that include norms of this type in their legal systems.

According to the Recommendations of the Forum on Minority Issues at its sixth session: Guaranteeing the rights of religious minorities, 26 and 27 November 2013 (A/HRC/25/66, n. 30), “Economic actors, including private businesses, as well as bodies representing employees, such as trade unions, should ensure that religious minorities and their specific religious requirements are reasonably accommodated in the workplace” (see also Guide on art. 9, p. 32, 36; CCPR General Comment n. 22: No. 4). Accepted limitations to the right to wear RBSs include secularism (Guide on article 9, p. 36: "States may rely on the principles of State secularism and neutrality to justify restrictions on the wearing of religious symbols by civil servants at the workplace") and the protection of the company's specific commercial image weighed up against the individual’s right to manifest his or her religion (Guide on art. 9, p. 37).

RBSs and members of Parliament, judges and police officers (Cluster C)

Some subjects perform public functions of particular importance and sensitivity. As noted by the Commissioner for Human Rights (Human Rights in Europe, p. 41) “this may require complete neutrality, as between different political and religious insignia; in other instances, a multi-ethnic and diverse society may want to cherish and reflect its diversity in the dress of its agents.” Both options are legitimate from the point of view of international standards. The Atlas examines three categories of subjects (MPs, judges, and police officers) and considers whether special rules apply to them. The need for special rules has been widely debated, especially in relation to judges, but in the countries considered by the Atlas, no rules prescribing special regulations for these subjects have been issued at national level. 

RBSs in Public Spaces (Cluster D)

Some states prohibit the wearing of particular RBSs (particularly those that cover the face) in public spaces (streets, squares, etc.). The reasons most frequently cited to justify this prohibition are security and, with particular reference to burqa and niqab, women's rights. The ECtHR has also held that the ban of full-face veil in public places “can be regarded as proportionate to the aim pursued, namely the preservation of the conditions of ‘living together’ as an element of the ‘protection of the rights and freedoms of others’” (S.A.S. v. France, Application no. 43835/11, July 1, 2014, no. 157). Also in this case, a negative score was given to countries that have enacted restrictive or prohibitive general legislation, thus reducing the possibility of resolving any conflicts through case law.

In some countries, regulations have been introduced that prohibit the public from wearing or displaying RBSs inside public institutions (hospitals, courts, etc.) for security reasons or to respect the neutrality of these places. The Atlas has considered whether there are any special rules that differ from those in force for public places in general. There is no evidence of the existence of such rules at the national level, although in some countries they are in force at the local level. Finally, particular public spaces where security requirements are especially stringent, such as airports, were considered. Here, too, the existence of particular rules beyond the obligation to temporarily remove religious symbols that prevent the identification of a person or security checks, was not found.

The Council of Europe has expressed the opinion that “Article 9 of the Convention includes the right of individuals to choose freely to wear or not to wear religious clothing in private or in public. Legal restrictions to this freedom may be justified where necessary in a democratic society, in particular for security purposes or where public or professional functions of individuals require their religious neutrality or that their face can be seen.” On the specific issue of the full-face veil, it has added that “a general prohibition of wearing the burqa and the niqab would deny women who freely desire to do so their right to cover their face” (Parliamentary Assembly of the Council of Europe. Resolution 1743 (2010), no. 16). 

The ECtHR has established that prohibiting the wearing of religious clothing or symbols in public places may constitute a violation of Article 9 ECHR (Ahmet Arslan and Others v. Turkey, no. 41135/98, 23 February 2010). It has also ruled that the wearing of an item of clothing intended to cover the face may be legitimately restricted or prohibited by a State, even if this item is deemed to be a religious symbol: in fact “the barrier raised against others by a veil concealing the face" may constitute a "breaching of the right of others to live in a space of socialization which made living together easier” (S.A.S. v. France (GC), no. 43835/11, 1 July 2014, n. 122). 

Official display of RBSs by prisons, health facilities and the military (cluster E)

In some countries there is an obligation to display the symbols of a religion (usually the majority religion) in prisons, health facilities and barracks; in others the official display of RBSs is possible but not compulsory and still in others is forbidden. The criteria that were applied to assess these different national situations are the same as those used in relation to official RBSs display in public schools (see the introduction to the policy area "RBM rights in public schools,” cluster D).

Display of RBSs by inmates, patients, and military personnel in their private spaces (cluster F)

In all EU countries inmates, patients and military personnel may display RBSs in their private spaces (bedside table, locker, etc.) without any restrictions.

For the issue of RBSs at school see the policy area "RBM rights in public schools".

 

                                                                          Cristiana Cianitto and Silvio Ferrari

 

GUIDE TO READING DATA

 

This guide provides some keys to interpreting the three indices (P-index, E-index and G-index) calculated on the basis of  the Atlas data.

 

P-index (States)

1.     Analysis of the data on religious or belief symbols (RBSs) indicates that most countries have not introduced general restrictions or prohibitions that prevent or make it difficult to wear RBSs in the workplace or in public spaces (see clusters A-D). Despite the fact that, from time to time, and in specific cases, the courts or local administrative authorities have subjected this right to some restrictions, there is no general legislative prohibition. On the other hand, such a prohibition is in force in three countries, Austria, Belgium and France, where it is forbidden to circulate in public places with one's face covered (this prevents Muslim women from wearing burqas or niqabs). In the last two countries, moreover, public employees cannot wear RBSs in the workplace and in France members of parliament cannot wear conspicuous RBSs (a similar prohibition also applies to students in public schools;  this issue is considered within the policy area "RBM rights in public schools"). 

2.     The display of RBSs by public institutions is the other major theme addressed within this policy area (see cluster E). The Atlas takes into consideration prisons, health facilities and barracks (for the display of RBSs in public schools see the corresponding policy area). In relation to these places, the countries considered in the research can be divided into three groups. In some (France and Hungary) the display of RBSs is forbidden; in others there is no legislative prohibition but RBSs are not normally displayed (this is the case in Belgium, Estonia, Finland, Sweden); in the third group symbols of the Christian religion are usually displayed (crosses, crucifixes, icons, etc.) although there is no regulation that imposes such display.  This is the case in Austria, Greece, Italy, Romania and partially Spain. In some cases, RBMs share the symbols of the majority religion (for example in  Italy  the crucifix is the main symbol of the Catholic Church and the Lutheran Church). This fact, together with the absence of precise legislative references, has made the evaluation of the promotion of the rights of RBMs in each country particularly complex.

 

P-index (RBMs)

3.    This index shows a cleavage between Christian and non-Christian RBMs. Overall, the RBMs that enjoy more favorable treatment are those that belong to the Christian religious family. The difference is mainly due to the fact that in some countries only Christian religious symbols are actually displayed in prisons, hospitals, and barracks. Among non-Christian RBMs, Muslim communities are the worst off due to restrictions placed by some countries on hijab, burqa and niqab.

 

E-index (States)

4.     Equal treatment of all RBMs is ensured in the countries where there are no restrictions on the wearing of RBSs in the workplace or in public spaces and no obligation to display RBSs in prisons, hospitals and barracks: Estonia, Finland, Hungary and Sweden. In the other countries, inequality is strongest in Austria where, in addition to the distinction between Christian and non-Christian RBMs that occurs in all countries where religious symbols are displayed in public institutions, an "anti-burqa" law that disadvantages Muslim women is in force. 

 

G-index (States and RBMs)

5.    This index confirms the data that has already emerged from the previous one. Sweden and Finland are the countries where the distance between the majority religion and religious minorities is less (in Estonia and Hungary there is no majority religion), and Austria the one where the distance is greater. Among the RBMs, Islam is the minority religion furthest from the position of the majority religion.

 

 

RESOURCES

For the CoE standing on the issue of religious symbols in public places (in particular concerning the wearing of burqa and niqab) see Parliamentary Assembly of the Council of Europe. Resolution 1743 (2010). Islam, Islamism and Islamophobia in Europe, no. 15-17  and Recommendation 1927 (2010), 23 June 2010.  Islam, Islamism and Islamophobia in Europe, no. 3.13 . The same issue has been addressed by Thomas Hammarberg, Council of Europe Commissioner for Human Rights, in Human rights in Europe: no grounds for complacency, Council of Europe Publishing, 2011, pp. 39-43 

ECtHR case law is summarized in European Court of Human Rights, Guide on Article 9 of the European Convention on Human Rights, Strasbourg, Council of Europe/European Court of Human Rights, 2021, pp. 32-38. A summary of the cases is contained in European Court of Human Rights. Press Unit, Religious symbols and clothing, December 2018  

The decisions of the UN Human Rights Committee, which are often in contrast to those of the ECtHR, are analyzed in International Commission of Jurists, A Primer on International Human Rights Law and Standards on the Right to Freedom of Thought, Conscience, Religion or Belief, Geneva, International Commission of Jurists, 2019, pp. 13-16 

For an analysis of the issue of RBSs in the workplace see  Erica Howard, Religious clothing and symbols in employment. A legal analysis of the situation in the EU Member States, European Commission. Directorate-General for Justice and Consumers, November 2017; Court of Justice of the European Union. Directorate-General for Library, Research and Documentation. Research note, The wearing of religious symbols at the place of work, 2016 

The issue of RBSs worn by judges is discussed by Benjamin Berger, Against Circumspection: Judges, Religious Symbols, and Signs of Moral Independence, in Benjamin L Berger and Richard Moon, eds., Religion and the Exercise of Public Authority, Oxford and Portland,  Hart Publishing, 2016, p. 23 ff. 

The prohibitions and limitations that affect walking with a covered face in public places are discussed in Open Society Foundations, Restrictions on Muslim women’s dress in the 28 EU Member States: Current law, recent legal developments, and the state of play, July 2018

About the official display of RBSs in prisons, healthcare facilities and barracks see Marta Ordon, Piotr Stanisz, Micha Zawilak (eds.), Presence of the cross in public spaces : experiences of selected European countries,  Cambridge, Cambridge Scholars Publishing, 2016. See also the resources listed in the introduction to the policy area “Spiritual assistance”.

The issue of RBSs is discussed in the following books: 

Cox, N. (2019). Behind the Veil. A Critical Analysis of European Veiling Laws, Cheltenham, Edward Elgar Pub. 

Howard, E. (2021). Law and the Wearing of Religious Symbols in Europe, Abingdon, Routledge 

Ferrari, A. and Pastorelli, S. (eds.) (2013), The Burqa Affair Across Europe: Between Public and Private Space, Abingdon, Routledge