Wednesday, 10 December 2008

Dogru v France - End of the Veil Wars ?

Have just added to a link to the case of Dogru v France BAILII: [2008] ECHR 1579 where the European Court of Human Rights finally got the chance to examine the so called French 'Hijab Ban'. The law of 2004 does not just ban the Hijab, of course, it bans the display of any "conspicuous" religious symbol in French Schools but, as is made clear in paras 17 - 32 of the judgement the primary purpose of the French Law of 2004 was to prevent the wearing of the Hijab.

In overall terms the decision in Dogru is predictable based on the Courts' earlier decisions in Sahin v Turkey
and Dahlab v Switzerland

The fact that the ECtHR has backed the French Ban along with the Courts refusal in MANN SINGH v. FRANCE to support a French Sikh who wanted to wear his Turban in his Driving Licence photo makes it clear that the ECtHR is giving the most restricted interpretation possible to Article 9.

All of these case make it crystal clear that the ECtHR has interpreted Article 9 of the ECHR in a way that provides absolutely no protection for religious rights connected with the wearing of religious dress. What is even more worrying is that the logic used in these cases all relies on the courts own, very subjective, view as to what is 'necessary in a Democratic Society' Article 9.2. In Article 9 cases the ECtHR seems to consistently assume that because a Governmental department wants something it thereby becomes 'necessary' as opposed to merely being 'desirable. Certainly the test applied by the ECtHR in defining what is 'necessary in a democratic society', Article 9.2, is put by the Court at a worryingly low level.

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