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Hijab exclusion from court a human rights violation, judges rule

18 September 2018

A woman who was excluded from a Belgian courtroom after refusing to remove her Islamic headscarf, or hijab, has won a ruling from the European Court of Human Rights that there had been a violation of her human right to freedom of thought, conscience and religion.

By six votes to one, a chamber of the court held in Lachiri v Belgium that the exclusion of Mrs Lachiri – an ordinary citizen, not representing the State – from the courtroom had amounted to a “restriction” on the exercise of her right under article 9 of the European Convention to manifest her religion, and that the need for the restriction had not been established.

The case involved proceedings against an individual accused of premeditated assault and wounding resulting in the unintentional death of Mrs Lachiri’s brother. Mrs Lachiri, and other members of her family, had applied to join the proceedings as civil parties seeking damages. They appealed against the decision to commit the accused to trial on those charges, submitting that the offence should be classified as murder and that the accused should be tried by an assize court. On the day of the appeal hearing, in accordance with a decision of the presiding judge the court usher informed Mrs Lachiri that she could not enter the hearing room unless she removed her headscarf. Mrs Lachiri refused to comply and did not attend the hearing.

After unsuccessfully challenging that decision in an appeal on points of law, Mrs Lachiri lodged an application with the European Court of Human Rights.

The court noted that the purpose of the restriction, which had been based on article 759 of the Judicial Code requiring persons entering a courtroom to do so without wearing headgear, had in the present case been to prevent conduct that was disrespectful towards the judiciary and/or disruptive of the proper conduct of a hearing, and accepted that the legitimate aim pursued had been the “protection of public order”.

With regard to the necessity of the restriction in a democratic society, the court recognised first that the Islamic headscarf was headgear and not, as in the case of SAS v France (2014), a garment which entirely concealed the face with the possible exception of the eyes. Mrs Lachiri was a mere citizen: she was not a representative of the state engaged in public service and could not therefore be bound, on account of any official status, by a duty of discretion in the public expression of her religious beliefs. Moreover, while a court was indeed a “public” institution in which respect for neutrality towards beliefs could prevail over the free exercise of the right to manifest one’s religion, like public educational establishments, in the present case the aim pursued in excluding the applicant from the courtroom had not been to maintain the neutrality of the public arena.

Mrs Lachiri’s conduct when entering the courtroom had not been disrespectful and had not constituted – or been liable to constitute – a threat to the proper conduct of the hearing. Consequently, the court held that the need for the restriction in issue had not been established and that the infringement of Mrs Lachiri’s right to freedom to manifest her religion was not justified in a democratic society. Mrs Lachiri was awarded €1,000 in respect of non-pecuniary damage.

Click here to view the judgment (available only in French).

 

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