Cultural diversity and the principle of religious pluralism are axiomatic for a democratic society. Undoubtedly, the world is dealing with an increase in religion intolerance. In the aftermath of the September 11, 2001 attacks, the misplaced concern that the overt practice of Islam is a proxy for ‘extremism’ led to xenophobia and discrimination towards Muslims (Taylor, 2005).

An appraisal of the development of freedom of thought, conscience, and religion as embodied in Article 18 of the International Covenant on Civil and Political Rights (ICCPR) and Article 9 of the European Convention on Human Rights (ECHR) has never been more challenging. 

As EL-Gallal observes, ‘religions provide their members with a sense of identity and security’ (El-Gallal, 2014, p. 23). Therefore, not only the common norms and values but also religious symbols unite people of the same religion. The Muslim veil has triggered intense debates about freedom of religion. The enactment of national regulations which ban the right to wear a hijab in public places brought several cases before the human rights monitoring bodies, such as the Human Rights Committee (HRCtee) or the European Court of Human Rights (ECtHR).

This article aims to compare the practices of the ECtHR and HRCtee when dealing with a limitation of the right to wear the Muslim headscarf. For the purpose of the comparison, I will consider one judgment of the ECtHR, Dogru v. France (2009) and one decision of the HRCtee, Hudoyberganova v. Uzbekistan (2004).

1. Sources

Freedom of religion is a fundamental human right grounded in the text of various instruments, adopted at international and regional levels. In the United Nations context, Article 18 of the ICCPR is the core article that warrants protection for the said right. Under the Council of Europe framework, Article 9 of ECHR is the key provision (Taylor, 2005).

According to the two articles, freedom of religion embraces not only the inner-life but also the public manifestation of religious beliefs, which include the freedom to wear religious clothing (El-Gallal, 2014). The ‘forum internum’ (i.e. the inner freedom of religion) is inviolable and subject to no restrictions under both articles. In contrast, using slightly different language, Article 18(3) ICCPR and Article 9(2) ECHR allow governments to limit the freedom to wear religious symbols under certain circumstances (Bantekas & Oette, 2013). Less egregious infringements involve questions as to whether they are prescribed by law or whether they are justifiable restrictions under the ‘necessity’ requirement (Parker, 2006). The ECHR provides an additional condition, the interference to be ‘necessary in a democratic society’. Thus, it must fulfil a pressing social need and must be proportionate to the legitimate aim pursued.

2. Comparative synthesis 

2.1 Facts

The controversies surrounding the wearing of religious clothing and symbols in public institutions such as schools or universities found their way to the HRCtee and the ECtHR (Carolyn, 2006). The decision in Hudoyberganova v. Uzbekistan (2004) involved a university student of the Muslim faith who was expelled for wearing a hijab. The applicant refused to abide by the Institute`s regulations that barred students from wearing religious dress in school. The UN HRCtee found a violation of Article 18 ICCPR, which prohibits ‘coercion that would impair the individual`s freedom to have or adopt a religion’ (Hudoyberganova v. Uzbekistan, [2004], at 6.2.). 

In the judgment Dogru v. France (2009), Belgin Dogru, enrolled at a public secondary school in France, refused to remove her hijab during physical education classes. As a consequence, she was expelled from school on the reason that she breached the duty of assiduity and did not comply with the school`s regulations governing safety and health. Under these circumstances, the applicant alleged a violation of her right to religion and education. The Court held that there has been no violation of Article 9 of the ECHR, but did not examine the complaint based on Article 2 of the Protocol no.1 to the Convention (Dogru v. France, [2009], at 78 and 84).

2.2 Merits

A glimpse at the reasoning of the two human rights bodies shows that both the Court and the Committee agree that freedom of religion includes the freedom to wear religious symbols, such as the hijab (Hudoyberganova v. Uzbekistan, [2004] at 6.2., Dogru v. France, [2009] at 47). Consequently, both bodies ruled that a ban on wearing a headscarf in a public school or university represents a restriction on the right to manifest ones religious beliefs (Dogru v. France, [2009] at 48, Hudoyberganova v. Uzbekistan, [2004] at 6.2.),

However, striking divergences can be observed between the approach of the HRCtee and the ECtHR in determining whether the interferences with the freedom of religion meet the requirements of Article 9(2) ECHR and Article 18(3) ICCPR.

In Hudoyberganova, the Committee found that the expulsion of a female student from a university because of her refusal to comply with a regulation that prohibited the wearing of Islamic headscarf constituted a violation of Article 18 ICCPR. Five years later, in Dogru, the Court reaffirmed its contrasted legal position, holding that there has been no violation of Article 9 of the Convention (Dogru v. France [2009] at 78).

Firstly, in determining whether the restriction is ‘prescribed by law’, the ECtHR held that ‘the interference in question had a sufficient legal basis in domestic law’ (Dogru v. France [2009] at 50 and 59). Referring to its previous case law, the Court reiterated that the concept of ‘law’ must be understood in its substantive sense (Dogru v. France, [2009] at 52). Therefore, the law must meet three conditions: to be accessible to the persons concerned, formulated with sufficient precision and to a degree that is reasonable in the circumstances that a given action may entail. Reaching the same conclusion as the Court, the Committee held that in Ms. Hudoyberganova’s case the exclusion was based on the internal provisions of the University’s regulations (Hudoyberganova v. Uzbekistan, [2004] at 6.2.). However, the UN HRCtee did not refer to the quality of the law in question.

Regarding the second condition, the ECtHR held that the interference pursued the legitimate aims of ‘protecting the rights and freedoms of others and protecting the public order’ (Dogru v. France, [2009] at 60). On the contrary, the Committee notes in para. 6.2 of the Hudoyberganova decision that the State Party has not invoked ‘any specific ground’ for which the limitation imposed on the applicant could be understood as necessary in order ‘to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’. The only justification the Government brought was that Ms. Hudoyberganova infringed the internal regulations of the University (Hudoyberganova v. Uzbekistan, [2004] at 4.3). One could say that the different conclusions reached by the two HR bodies are due to an absence of arguments presented by the parties.

Lastly, the Court considered the requirement that the infringement is ‘necessary in a democratic society’, a condition not assessed by the Committee. An interference which is ‘necessary in a democratic society’ must be shown to fulfil a ‘pressing social need’ that is proportionate and relates to the legitimate aims pursued. In a pluralistic society, legitimate limitation on the freedom of religion may be necessary ‘if the freedom clashes with the aim of protecting the rights and freedoms of others, public order, and public safety’ (Parker, 2006, p. 119). The Court did not assess the proportionality test, but it recognised that a ‘margin of appreciation’ must be afforded to the Member States (Dogru v. France, [2009] at 71). A hijab ban imposed during physical education classes was found to be reasonable because it was necessary to comply with the school’s internal rules on health and safety. The consequence was not disproportional as she was able to continue her schooling by correspondence classes (Dogru v. France, [2009] at 73).

2.3 Clash of jurisdictions

The comparative analysis of the legal reasoning in the two cases reveals that at a regional level, the Court seems to be more willing than the Committee to allow States to limit individuals’ freedom of religion while the Committee approaches a view in line with the principle of religious neutrality (Scheinin, 2012). In determining which body has a stronger legal reasoning, one must look at the approaches the ECtHR and HRCtee had taken in assessing Member States’ margin of appreciation when deciding how to enforce the fundamental rights. While in Dogru the ECtHR gives France a wide margin of appreciation for defining whether the limitation is necessary in a democratic society, the UN HRCtee in Hudoyberganova had a different approach, focusing on the particular circumstances of the case. The Committee reasoned its position in one single paragraph, avoiding to apply the notion of ‘margin of appreciation’. Instead, the HRCtee held that the measure at stake, which restricts access to education, amounts to coercion and cannot be justified solely by the principle of secularism. 

The Court failed to prove the proportionality test when it supported the grounds provided by France to justify the ban, namely protecting the secular order of the state and the rights of others.  It did not consider if the social need was addressed in Belgrin Dogru’s situation or if the limitation of her right to wear a hijab was the least restrictive limitation possible. The ECtHR afforded France a wide margin of appreciation to determine what is necessary in a democratic society and it refrained from examining the proportionality test. Granting a state a wide margin of appreciation poses serious concerns, for it affects a series of rights, including the right to education (Bantekas & Oette, 2013). States should not enjoy such a wide autonomy to define secularism in cases concerning freedom of religion.

From my perspective, the Committee had balanced the interests of the individuals and of the state better than the Court, in this way managing to protect the applicant’s right to freedom of religion. This is why I assert that the legal reasoning of the HRCtee is stronger than the one of the regional body, irrespective of its non-binding character.

However, I believe that it is noteworthy to stress that in Hudoyberganova, the Committee states that Uzbekistan had not actually put forward any particular reasons for limiting the applicant’s freedom of religion (Hudoyberganova v. Uzbekistan, [2004], at 6.2). The Government of Uzbekistan had a right to limit fundamental rights on the ground of public order (Kuznetsov, 2014). Hence, if the limitation had been possible to explain by the same ground advanced by the government in Dogru, the legal reasoning of the Committee and the Court could have been similar (Temperman, 2014). 

In order to uphold my opinion, I must emphasise that the ECtHR was constant in its judgments concerning the freedom to wear religious symbols (for instance, in the 2004 Leyla Șahin v. Turkey). However, in light of the principle of a ‘living treaty’, the Court found that UK violated a citizen’s right to manifest her religion when the applicant was not allowed to visibly wear a cross necklace at work in the recent case of Eweida v. UK (2013). Judicial borrowing is present between international Human Rights bodies. Even if the ECtHR in Dogru did not choose to follow the reasoning of the UN HRCtee in Hudoyberganova, the recent case shows a shift in the Court’s legal reasoning.


This article has focused on the differences and similarities in the legal reasoning of the HRCtee and the ECtHR. The two cases discussed raise questions about the future of freedom of religion, especially in countries where the constitutional principle of secularism is enshrined. The Human Rights Committee, in its decision, wisely managed to balance the applicants’ rights vis-à-vis the state’s interest, protecting the rights of persons belonging to minorities. The judgment is an example of the way in which the European Court of Human Rights affords a wide margin of appreciation to States. But, in analysing the case under Article 9, the ECtHR should not refrain from analysing the proportionality test and it should not neglect to address other provisions. I hope that the two human rights monitoring bodies will reflect ‘a spirit of tolerance and respect for human rights’ in their future cases. 


By Lavinia Iușan


This article was originally published in the tenth issue of the magazine, which can be accessed here. 


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