The Concept of Religious Freedom in the European Union

MASARYK UNIVERSITY FACULTY OF SOCIAL STUDIES

Department of International Relations and European Studies

European Studies

Master’s Thesis

Anna Matušinová

Supervisor: JUDr. Mgr. Ivo Pospíšil, Ph.D. UČO: 210609 Discipline: ES Year of Matriculation: 2009 Brno, 2011

I would like to express my gratitude to JUDr. Mgr. Ivo Pospíšil, Ph. D. for the skilful supervision of my research, helpful advice and overall approachability. This thesis would not have been possible without the support of Stuart Andrew Hopkinson, Cheri Kramer, Kayla Meek, Ondřej Lébl and Joseph

Zelezny.

Declaration

I certify that the master thesis entitled The Concept of Religious Freedom in the European Union is all my own work based on the listed literature. I understand that I may be penalized if I use the words of others without acknowledgement.

In Brno, May 19, 2011 Anna Matušinová

CONTENTS

1. INTRODUCTION ...... 1 2. CONCEPT OF THESIS ...... 3 2.1. Hypothesis and structure of the study ...... 3 2.2. Methodology ...... 4 3. THE TRADITION OF RELIGIOUS FREEDOM IN EUROPE ...... 7 3.1. The term “religious freedom” ...... 7 3.2. Historical context in brief ...... 8 4. INSTRUMENTS TO SECURE THE FREEDOM OF RELIGION IN EUROPE ...... 15 4.1. The European Convention on Human Rights ...... 15 4.2. Other conventions within the Council of Europe ...... 18 4.3. Protection of human rights in the primary law of the EU ...... 19 4.4. Charter of Fundamental Rights ...... 20 4.5. Other instruments within the European Union ...... 21 4.6. Conclusions ...... 21 5. FREEDOM OF RELIGION AS AN ISSUE ...... 23 5.1. How are the tensions created? ...... 23 5.2. Judicialization of politics ...... 24 6. THE CONSTRUCTION OF MOSQUES ...... 30 6.1. The political and social debate ...... 31 6.2. Reasons behind the protests ...... 38 6.3. The examination of cases according to typology ...... 40 6.4. Conclusions ...... 43 7. CRUCIFIXES ...... 45 7.1. Approach of judicial sphere ...... 46 7.2. Political decisions and public debate ...... 50 7.3. Conclusions ...... 56 8. RELIGIOUS HEADWEAR ...... 58 8.1. Approach of judicial sphere ...... 59 8.2. Political decisions and public debates ...... 64 8.3. Conclusions ...... 75 9. RELIGIOUS OATHS ...... 77 9.1. Approach of judicial sphere ...... 77 9.2. Political decisions and public debate ...... 79

III

9.3. Conclusions ...... 81 10. RELIGIOUS HOLIDAYS ...... 83 10.1. Approach of judicial sphere ...... 85 10.2. Political decisions and public debate ...... 86 10.3. Conclusions ...... 90 11. CONCLUSION ...... 91 12. BIBLIOGRAPHY ...... 95 12.1. Table of cases ...... 95 12.2. List of legislation ...... 97 12.3. Books ...... 98 12.4. Articles ...... 99 12.5. Newspapers ...... 101 12.6. Other sources ...... 103

1. INTRODUCTION

“Those who say religion has nothing to do with politics do not know what religion is.” 1 Mohandas Gandhi

Religion - the word, which has inflicted a variety of feelings since the beginning of mankind. For centuries both religion and faith have been a source of controversy in Europe. During the medieval age torturing and killing were ways to cope with heretics and infidels. The 20th century, however, was not refrained from religious riots. The last century came with one of the biggest genocides of a religious group in the history of mankind – the Jews. The war in the former Yugoslavia and ethnic cleansing in Rwanda2 still reminds us that people are capable to kill each other because of race or religion even today.3 Although the age of the unprecedented influence of the Church on the State’s affairs is already gone, the clash of the sacral and profane world is still deepening. For Europe, and especially the European Union (EU), the number of immigrants is increasing. Those people have diverse political, cultural, religious and social backgrounds. What they share in common is that they are trying to keep ties with their countries of origin. The manner of achieving this goal is mainly through practising cultural and religious traditions. Due to this fact, European cities are slowly changing their appearance as immigrants with a common language, country of origin and in particular religion, are settling different areas (one may think that the modern semi-voluntary ghettos are being built). The majority of immigrants in the European Union are coming from Arabic countries. Due to this fact the common religion shared among immigrants is Islam,4 a religion with which the traditionally Christian inhabitants of Europe are confronted with every day.5 It is obvious that conflicts are not very smooth as can be

1 Gandhi, M. K.: An Autobiography or The Story of My Experiments with Truth, pp. 370 – 371. 2 There are obviously more cases of mass-killings based on religion, the given examples are there only for illustration. Moreover the study should take into account the cases on the area of the European Union. 3 Boven van, T.: Advances and Obstacles in Building Understanding and Respect between People of Diverse Religions and Beliefs, Human Rights Quarterly, Vol 13, No 4, November 1991, pp. 442. 4 According to the data from Eurostat the immigrants to the EU came in the third-fourth of year 2010 especially from Afghanistan, Iraq, Russia, Serbia and Somalia. The Czech Republic accepted the most applications for asylum from Kazakhstan, Mongolia, Russia and Ukraine. The majority of immigrants are heading to Germany, France, Sweden, Belgium and the United Kingdom. Eurostat Data in Focus 1/2011 – Population and social conditions, available at (http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-QA-11-001/EN/KS-QA-11- 001-EN.PDF). 5 I mean the historical view on the Europe (not only current situation and the EU area). There are seven States of the European Union which established churches: Cyprus – Greek Orthodox Church of Cyprus, Denmark – the

seen from the recent years’ incidents. Emotions based on religious beliefs have a great impact on the political situation in the world, even though the majority of countries are secular.6 The other aspect of the freedom of religion7 is that it does not exist in a vacuum. Religion often influences other human rights and freedoms. The most discussed problems of recent years include the building of mosques with minarets, religious symbols in public offices and schools or caricatures of the prophet Muhammad. All of these cases clearly show that religious emotions have a great potential to evoke exorbitant reactions of all parties related to the conflict. The European courts, governments and supranational institutions were coerced to react. All of the actors did not take the same approach; they varied from benevolence through restrictions to prohibition of religious symbols and other rights with relation to the freedom of religion. The measures taken by the governments, the courts’ decisions and the opinion of European citizens is not uniform in all cases, however. The aim of this master’s thesis is to analyze current attitudes towards the freedom of religion in the European Union. The freedom of religion is a fundamental human right which belongs to the so-called first generation of civil and political rights and is primarily protected by Article 9 of the European Convention on Human Rights (ECHR) on the European continent. It is also ensured according to Article 10 Charter of Fundamental Rights of the European Union. The issue of religious freedom is still subject to broad political-legal-social debates, notwithstanding, there are many significant rulings by the European courts, as well as at the level of the Council of Europe (CoE) and at the level of national courts. The current reactions of political actors and the wide variety of opinions lead me to write up the presented text. The thesis brings a comprehensive view on the issue of the freedom of religion and demonstrates that the acts of European politicians and opinions of European citizens might be diametrically distinct.

Danish Lutheran Church, Finland – the Evangelical Lutheran Church of Finland and the Finnish Orthodox Church, Greece – the Greek Orthodox Church, Malta – the Roman Catholic Church, and United Kingdom – the Church of England and the Church of Scotland. Additionally more than 90% of population avow to the Roman- Christian profession in Italy, Luxembourg and Poland. According to most recent survey of Eurostat around 52% of European population believe in God (majority of them coming from Cyprus, Greece, Italy, Ireland, Poland, Portugal and Romania) and 27% believe that there is some sort of spirit or life force; only 18% declared that they don’t believe in any supernatural existence. Special Eurobarometer 225 – Social values, Science and Technology (2005), available at (http://ec.europa.eu/public_opinion/archives/ebs/ebs_225_report_en.pdf ), pp. 7 – 11. 6 Non-considering countries such as Vatican, Israel and countries with Sharia law system (Iran, Oman, Pakistan, Saudi Arabia and Yemen), etc. Moreover these countries are not members of the European Union. 7 The terms „freedom of religion” and “religious freedom” are used interchangeable in the thesis.

2. CONCEPT OF THESIS

2.1. Hypothesis and structure of the study

As it was outlined in the Introduction, the aim of the thesis is to study if there is a correlation between politics, the judicial world and public opinion. The text follows the approaches of these actors and compares them. I state that the comprehension of these actors is not unified. The introductory chapter clarifies the term “religious freedom” and history of its comprehension in Europe. The analysis begins with the delimitation of legal documents which are relevant in the context of the Council of Europe and the European Union. The legal framework of these supranational organizations has a significant influence on the evolution of opinions and enforcement of the religious freedom in Europe. The aim of the initial chapters is to define the scope as well as establish the social and legal framework without court rulings. Hence, I reflect neither the case-law of the European Court of Human Rights (ECtHR) nor the European Court of Justice; rather case-law is incorporated in the following chapters. The second part of the thesis begins with a short introduction as to why religious freedom is a current issue, and then a short subchapter which acquaints the reader with the judicialization of politics. In order to achieve the aim defined in the hypothesis, I decided to structure the thesis according to the relevant issues; a single chapter is therefore devoted to each area of conflict: that the construction of mosque, the use of a crucifix, headwear, religious oaths and religious holidays.8 Each issue is described from the viewpoint of the applicable law (the decisions of politicians and political debates themselves are the relevant factor considered), as well as from case-law (the ruling of courts comprises the relevant factor there) and concluding with examining civic activity (public opinion frames the relevant

8 The list of topics is obviously not exhaustive. The essay is mainly focusing on the freedom of religion as an individual right. As the most important discussions between politicians, judges and public are about the freedom of religion as right of individual. The essay describes the most sensitive topics; therefore there are not chapters about the food preparation, blood-transfusion and other topics. The rights of religious communities and associations - especially church-state relations and religious education as well as limitations of freedom in prison and military service are not reflected. Moreover this short essay is not capable to cover all related topics in detail as it would extend the essay into giant format. The freedom of religion is often in conflict with other rights such as freedom of expression. The detailed description of infliction with other rights would be beyond the scope of the essay.

factor). Concerning religious topics the approach of politicians and the public is generally concurring and therefore it is difficult to separate these categories of influence. Due to this fact I decided to unite the subchapters regarding political decisions and public debate. The examination of judicial impacts will be provided in the concluding remarks at the end of each chapter. The only exception to the scheme occurs in the chapter regarding buildings, since the debates are held mainly between politicians and the general public. The courts are generally not involved because of the thoroughness of building permit regulations established by bureaucrats. The chapter therefore describes the most interesting cases which happened recently in one of the EU Member States with a powerful Muslim minority. The aim of the chapter is to compare the possible attitudes towards the construction of mosques and minarets in Europe. The Europe reached a pivotal moment in history as religious tolerance increases but in the same time brings the conflicts with other freedoms. I will demonstrate how this is the case and the significant obstacles that were overcome along the way. The concluding chapter summarizes up the text and presents ideas about the future development and evolution of religious freedom within the European Union.

2.2. Methodology

The qualitative content analysis was mainly exploited in the thesis. The quantitative content analysis was used while gathering information about public opinion although the data was taken from official documents. A quantitative survey would likely be impossible to carry out. The selection of scope of respondents who would fill the questionnaires on religious freedom is not an easy task. It is not possible to undertake research covering extend which would be appropriate for the topic discussed in thesis. Above the validity and representativeness of such results might be contested. For these reasons I utilized official statistics from Eurobarometr and other reliable sources. I mainly classify, summarize and interpret the statistical information.9

9 I followed methods described in Drulák, P. (eds.): Jak zkoumat politiku: kvalitativní metodologie v politologii a mezinárodních vztazích. And McNabb, D. E.: Research methods for political science: quantitative and qualitative methods.

The sphere of politicians is examined on various levels. One of them encompasses the analysis of parties’ programs which have significant impact on political discussions and statements. These discussions are inevitably reflected in adopted national law; therefore, the examination of national law – especially constitutions and special acts would be taken into account. It is not the aim of the thesis to describe such national legislation in detail. The thesis does not mainly focus on the basic documents containing religious freedom but rather reflects only the “exceptions” from freedom of religion or other rights adopted by special acts. It should be noted that the interference of political and public sphere may be closely interlocked. None of the actors exists in a vacuum and as such they will unavoidably influence each other. Such is the reason why it was difficult to determine the strict borderline between these three dimensions. The chapters should be read as a whole compact complex and not divided into three separate units even though I attempt to compare them in the conclusion. The opinion of judges will be demonstrated in the use of case-law. As the European Union has 27 Member States and majority of them have constitutional courts or other bodies which might interpret the law,10 as well as administrative courts and local courts, it is not possible to refer to all of the cases on the freedom of religion on the territory of the EU. I tried to choose the most important among them – especially those examples from the rulings by the European Court of Justice, the European Court of Human Rights and some of the highest national courts. I am aware that to ascertain the public opinion of European society could be problematic or even impossible in some cases. Therefore, in order to make the best of the accessible possibilities of the official statistics, news from media and information from non- governmental organizations will be utilized and examined. As it was already mentioned that the first part of the thesis describes the relevant law documents of the European Union and the Council of Europe and it is here that the discourse analysis was applied. The method of case study was used while studying the relevant issues connected to the freedom of religion. The comparative method was exploited in confrontation of the approach of the politicians, judges and citizens. Due to the

10 Indeed majority of constitutional courts interpret constitutional law or some of them even review the constitutionally of laws (either ex ante or ex post).

mix of the method the text is capable of giving a complex view on the issue and examines the hypothesis in greater detail.

3. THE TRADITION OF RELIGIOUS FREEDOM IN EUROPE

“Claiming that religion is overcome is a mistake and superficiality, which occurs to be fatal for liberalism“. Tomáš Garrigue Masaryk11

3.1. The term “religious freedom”

According to Saint Augustine’s12 De Civitate Dei (The City of God) the word religion express human ties, relationships and affinities. He says that “it would inevitably introduce ambiguity to use this word in discussing the worship of God, unable as we are to say that religion is nothing else than the worship of God, without contradicting the common usage which applies this word to the observance of social relationships”.13 In his work he discussed further that the term “religio” (in which the word religion has probably its origin)14 implies a certain obligation to a supernatural being. The word freedom originally comes from Latin “libertas” which denotes the “state of being free within society from oppressive restrictions imposed by authority on one’s behaviour or political views”.15 It implies the power to act as one pleases with restrictions based on law. On first sight the aforementioned explanation of the term “freedom of religion” could be seen as contradictory since it connects liberty with obligation. The obvious deduction from the excursus to the etymology of “religious freedom” is that the term covers an entitlement as well as an obligation. While the expression “Church” is mainly connected to the Christian faith, “fundamentalism” is similarly associated with Islam; “religion” is the general term. According to the Oxford dictionary the religion is the “belief in and worship of a superhuman controlling

11 Masaryk, T. G.: Světová revoluce, pp. 601. 12 Augustine of Hippo (354 – 430) was Bishop in The Roman Africa Province. He was one of the most influential Christian theologian and philosopher. 13 Augustine: The City of God, Book X, Chapter 1, available at (http://www.newadvent.org/fathers/120110.htm). 14 The word religion is derived from the Latin religio. According to Cicero (De Natura Deorum – On the Nature of the Gods) it is derived from “le-ligare” (lego = read + re = again) meaning “choose” or “go over again” or “consider carefully”. Modern approach followed by Augustine is in favour to the derivation from word “ligare” (re + ligare = bind, connect) meaning to reconnect. 15 Oxford Dictionaries, entry liberty, available at (http://www.oxforddictionaries.com/view/entry/m_en_gb0468750#m_en_gb0468750).

power, especially a personal God or gods; it is a particular system of faith and worship; and a pursuit or interest followed with great devotion”.16 The Oxford dictionary states that the faith is a “complete trust or confidence in someone or something; it is a strong belief in the doctrines of a religion, based on spiritual conviction rather than proof”.17 It is obvious from the definition that every human being can have different religion or faith or another understanding of the very same religion or faith and therefore there might be a conflict between people. The freedom of religion encompasses both the positive and negative aspects. The positive aspect is “freedom to” which is an entitlement of an individual to hold religion or belief and to manifest it in a reasonable way in private or public sphere, either alone or in community with others. The negative aspect is “freedom from” which represents the right of an individual not to be subject to coercion, indoctrination or propaganda in religious matters. Both of these aspects create one coherent unit so that one cannot exist without the other. They also form the obligation of the State authority to be neutral towards any religion and not to discriminate one religion to another.18

3.2. Historical context in brief19

The birth of philosophy as a discipline was a crucial development for the future considerations about the relationship between religion and State. The Greek philosophers such as Socrates, Aristotle and Plato did not turned their attention to the cosmos only, but increasingly to man and society. The basis for the separation between religion, law, ethics and politics was created. The philosophers were aware of the threat of conflicts between religion and politics. “As soon as religion and philosophy are distinguished as separate perspectives on one and the same social and political reality, concurrence and conflict between them are likely to occur”.20 The history showed how true the considerations of the Greek philosophers were.

16 Oxford Dictionaries, entry religion, available at (http://oxforddictionaries.com/view/entry/m_en_gb0699400#m_en_gb0699400). 17 Oxford Dictionaries, entry faith available at (http://oxforddictionaries.com/view/entry/m_en_gb0285660#m_en_gb0285660). 18 Bobek, M.: Diskriminace z důvodu náboženství, in: Bobek, M. - Boučková, P. - Kühn, Z. (eds.): Rovnost a diskriminace, pp. 285. 19 The subchapter considers the territory of Europe and most significant events only. Although I am aware that the Christians were not only religious group in Europe, they were major group which was considered in the documents of rulers. Thus the following subchapter is concentrated on Christians in Europe. 20 Labuschagne, B. C. – Sonnenschmidt, R. W.: Religion, Politics and Law – Philosophical reflections on the sources of normative order in society, pp.79.

Plato defend a subordination of religion under politics, he started the argumentation which runs from Hobbes through Rousseau and to the modern concept of “laïcité”. The concept entailed the strict neutrality of the State and the separation of the Church and State. The history of Christianity on the European continent dates back to the Roman Empire. In the beginning the Christians were an unauthorized religious minority which was prosecuted. Tertullian21 in his Apology argues against State’s persecution as he advocates on behalf of Christians that they do not breach Roman law, even though, their rights are denied and they are subjects to torture.22 The situation of Christians in Roman Empire changed slowly. In 303 the Emperor Diocletian23 issued a series of edicts with the aim to repeal the legal rights of Christians. However they were not all applied and some of them were valid only in the Eastern provinces. The first Emperor who converts to Christianity was Constantine in 312.24 He issued (in cooperation with Licinius, emperor in the eastern part of Roman Empire) milestone Edict of Milan a year later. The Edict proclaimed religious tolerance in the entire Roman Empire.25 In 325 the Emperor Theodosius26 assembled the Council of Nicea, which asserted the existence of the Holy Trinity. Another turning point was the year 380 when Theodosius issued the edict Cunctos Populos in which he declared the branch of Christianity based on Council of Nicea as the only legitimate imperial religion. The Edict was intended for the inhabitants of Constantinople but it was applicable for the whole Roman Empire in fact. In 380 the official state support for the traditional Roman religion ended. The card was turned, the Christians were the privileged ones, the others were persecuted, their temples were being closed and rights being suppressed. The age of the Christian rule began. In The City of God (De Civitates Dei) Augustine27 called for the separation of the two cities – heavenly and earthly. The city of men (earthly city) is represented by social and political institutions which should keep order. The city of God (heavenly city) is the place of

21 Quintus Septimius Florens Tertullianus (160-220) was early Christian author from Carthage in the Roman province of Africa. He is considered to be an author of Christian terminology in Latin. 22 Tertullian: Apology, mainly Analysis and Chapter IV, available at (http://www.tertullian.org/articles/bindley_apol/bindley_apol.htm). 23 Gaius Aurelius Valerius Diocletianus (244 – 311) was a Roman Emperor from 284 to 305. 24 Flavius Valerius Aurelius Constantinus (272 – 337) was Roman Emperor from 306 to 337. 25 The Edict of Milan. 26 Flavius Theodosius (347 – 395) was the last Roman Emperor who ruled over both the eastern and the western halves of Roman Empire from 379 to 395. 27 The bishop Augustine of Hippo lived from 354 to 430 and was one of the leading Christian philosopher and theologian.

salvation. The cities are intermingled, but maintain a value of their own. The concept “has functioned ever since as both the touchstone and justification par excellence of all political order in the West, until the age of Enlightenment, when the notion of divine power was seriously challenged and eventually broken down by revolutionary movements”.28 Although in practice complete separation was not possible as the Christian ruler had a duty to serve God.29 The idea of caesaropapism was established during the rule of the emperor Justinian I. The concept combined the secular power of the government with the spiritual authority of the Church. The Concordat of Worms (1122) which ended the Investiture Controversy between the pope and state in medieval Europe had a crucial impact on the relationship of the Church and State. The compromise stated that the canons of the cathedral elect bishops and monks can choose abbots. The pope agreed that the king has the right to be present at such elections. The interaction between State and Church continued. Tomas Aquinas30 rose to become an immensely influential Christian philosopher and theologian. His Summa Theologica belongs to the mature works of the Christianity and influenced the comprehension of the Church in medieval age. The work was intended as a manual for beginners and a compilation of all of the main theological teachings of the time. It is especially famous for its five arguments for the existence of God. The Fourth Lateran Council held in 1215 opposed the idea of religious tolerance stating that heresy is error which does not have any rights. The Christian State has to defend the truth by error elimination. Heretics should be abandoned, punished with due justice, clerics degraded and property confiscated.31 One of the most important documents concerning the freedom of religion was the Peace of Augsburg. The treaty between the ruler of the Holy Roman and the Spanish Empire and the Schmalkaldic League (an alliance of Lutheran princes) was signed in 1555. The treaty came up with the idea of “cuius regio, eius religio” meaning that the ruler over the territory can decide which religion will be practiced there. German princes had the right to select either Lutheranism or Catholicism. The evolution in France was influenced by the changes in the Holy Roman Empire. Regent Catherine de Medici issued Edict of Saint-Germain in 1562, which entitled the

28 Labuschagne, B. C. – Sonnenschmidt, R. W.: Religion, Politics and Law – Philosophical reflections on the sources of normative order in society, pp. 86. 29 Ahdar, R. - Leigh, I.: Religious Freedom in the Liberal State, pp. 11 - 15. 30 The Italian Dominican priest Thomas Aquinas lived between 1225 and 1274. 31 The Canons of the Fourth Lateran Council (1215), Canon 3.

Huguenots to worship privately in towns and publicly outside them. Nevertheless the edict was revoked three months later. Another edict which provided controlled religious tolerance of Protestant worship was issued the following year. The wars between Protestant allies and Catholic French emperors resulted in a peace treaty which was amplified by the marriage of Protestant Henri of Navarre with Catholic Marguerite de Valois. However it culminated in the Saint Bartholomew’s Day Massacre (1572) between Catholics and Huguenots and resulted in further wars. They were ended by the Edict of Nantes in 1598 which granted Calvinists substantial religious rights. The aim of the Reformation process on the European continent was to relieve the Church of temporal power. Both Martin Luther32 as well as John Calvin33 called upon taking care of the spiritual life of citizens by the Church rather than influencing the State affairs. They did not deny the fact that Church and State interfere with each other but they struggled for as limited interference as possible. Luther did not support the idea of the Holy War against Turks (Muslims) but at the same time he considered both Judaism and Islam false religions.34 Calvin did not acknowledge any other religion as true except for Christianity but on the other hand he was moderate in condemning others. The Reformation process concludes in 1648 when the Treaty of Westphalia35 which ended the Thirty Years’ War (1618 – 1648) was signed. The Treaty confirmed the concept of “cuius regio, eius religio” (ruler can chose from Catholic, Lutheran or Calvinist) but at the same time tolerated private or communal worship of minority faiths in clandestine churches.36 The population either converted or moved to another area. The result of the Thirty Year’s War was that the Germany lost both population and territory and was divided into many semi-independent states. The age of Enlightenment started up new process. The Enlightenment in relationship with religion means: “the priority of reason to belief and herewith rejection of all religions,

32 Martin Luther (1483 – 1546) was a German priest and professor of theology. He is considered as one of the initiators of the Protestant Reformation thanks to his 95 Theses on the Power and Efficacy of Indulgences. 33 John Calvin (1509 – 1564) was a French theologian and principal figure of the Calvinism. 34 See his work about Turks Whether Soldiers can be in a State of Grace, where he supports non-religious war against Turks. In treatise On War against the Turk he saw Muslim faith as a tool of the devil. His opposition to Judaism is obvious from treatise On the Jews and Their Lies. He agreed to destroy synagogues, Jewish books and seizing property. 35 The Peace of Westphalia bound territory of the Holy Roman Emperor, the Kingdoms of Spain, France, Sweden and the Dutch Republic. 36 The clandestine churches were houses of worship which were used by religious minorities for communal worships. These churches were hidden inside houses and were discreet so their real purpose was not obvious from the first sight.

especially the Christian creed; freeing man from the ties of religion; freeing citizens’ religion from the authority of state power and ruling; tolerance between religions and denominations; fundamental rights and rule of law guaranteeing someone either being or not being religious; religion is considered to be a private matter and the separation of state and church”.37 However the premises are not entirely true as is examined in the description of the philosophers who belong to the era. Hobbes is considered as a founder of modern political theory. In his book Of liberty (De Cive), he founded the core of his theory of the citizen stating that the tensions between liberty, dominion and religion are essential. However even Hobbes distinguished between two societies – the civil (State) and ecclesiastical (Church). He expanded the idea of a subordinate position of religion to politics in his famous work Leviathan. The self-interest of man is used as a basis for the state, who exercises power as Mortal God. The rationalist attitude of Hobbes is significant as he rejects transcendent principles on the basis that matter and motion are the only true realities. He criticises the doctrines, belief in miracles and customs of the Catholic and Presbyterian Churches. Hobbes created a new god – Leviathan as political power does not come from God any more, but from the people who entered into contract with each other. Nevertheless he supports the idea to worship and honour God publicly. One of the first philosophers who enforced the idea of religious tolerance was John Locke.38 He formulated reasoning for religious tolerance in his Letter Concerning Toleration where he deals with relation between commonwealth and church. The core points written there are: 1) God is the sole judge, magistrates cannot evaluate the truth-claims of competing religious standpoints; 2) belief cannot be enforced; 3) coercing religious uniformity would lead to more social disorder than allowing diversity. “No man by nature is bound unto any particular church or sect, but everyone joins himself voluntarily to that society in which he believes, he has found that profession and worship which is truly acceptable to God. [...] A church, then, is a society of members voluntarily uniting to that end”.39 The knowledge of God’s existence is reflected in An Esssay Concerning Human Understanding in which he proves his argument in accordance with reason. “The existence of God as knowledge, results in human

37 Labuschagne, B. C. – Sonnenschmidt, R. W.: Religion, Politics and Law – Philosophical reflections on the sources of normative order in society, pp. 97 – 98. 38 John Locke (1632 – 1704) was an English philosopher who is considered as a founder of Liberalism. 39 Locke, J.: A Letter Concerning Toleration, available at (http://oregonstate.edu/instruct/phl302/texts/locke/locke2/locke-t/locke_toleration.html).

beings having to honour, obey, and fear Him”.40 From his view only tolerance could be a guarantee for coexistence of religious groups in society without conflict. However for Locke, “whose plea for toleration infamously did not include Catholics, not to mention atheists, such stance was entirely a function of his Protestant creed, which commanded a direct relationship between the individual and God”.41 Locke did not recommend a separation between the English Commonwealth and the Anglican Church. However according to him the difference between these two spheres should be in their purpose. The measures to limit of freedom of civil and religious society are determined by the content and the purpose of the Commonwealth. “Anyway, citizens do not have the freedom to believe in whatever they want to; neither are they free whether or not they want to believe at all”.42 The approach of Locke was not such liberal as it seemed to be. Rousseau43 assumed public religion in service of the state. The idea is clearly contradictory to the assumption of the Christian view of religion as it advocates a universal religion of love focused mainly on the individual. He elaborated his ideas about religion in the novel Emile: or, On Education where the spirit, substance, God, salvation and the right to religious education is examined. Rousseau supports the idea of the unification of state and religion as the state can never be well governed without this political union. It should be noted that Rousseau did not refer to Christianity of the 18th century. He advocated a pure and simple religion which is totally different to the Christianity of his age. The reason for the unification is that man never knows whether he ought to obey the civil ruler or the priest.44 According to the view of Hegel45 the state and religion represent the different forms of realization of the same substance (spirit – Geist). Through religion the nation establishes what is true, therefore it is important for order in society to localise individual and collective people’s belief. Hence only true religion can form the basis for law, religion and state. The closest type of the true religion is Protestant Christianity. Hegel criticizes Catholicism for its corruption and states that it is not eligible for a liberal legal and political order. According to

40 Locke, J.: An Essay Concerning Human Understanding, Book IV, Chapter 13, available at (http://oregonstate.edu/instruct/phl302/texts/locke/locke1/Essay_contents.html). 41 Joppke, Ch.: State neutrality and Islamic headscarf laws in France and Germany, Theory and Society, Vol 36, No 4, August 2007, pp. 313. 42Labuschagne, B. C. – Sonnenschmidt, R. W.: Religion, Politics and Law – Philosophical reflections on the sources of normative order in society, pp. 121. 43 Jean-Jacques Rousseau (1712 – 1778) was French philosopher whose ideas influenced French Revolution. 44 Rousseau, J. J.: The Social Contract, Book 4, Chapter 8, available at (http://www.constitution.org/jjr/socon.htm). 45 Georg Wilhelm Friedrich Hegel (1770 – 1831) was a German philosopher.

Hegel external and fanatical religions are not critical against each other and therefore cannot serve as a basis for the existence of a free society and state.46 The freedom of religion was slowly applied into the national law of States during the process of establishing the human rights of a human being which was started during the French Revolution. There was no international document, however, which would consider religious freedom in Europe. The first steps to protect the rights of every person took place within the United Nations through the Universal Declaration of Human Rights (1948) and later International Covenant on Civil and Political Rights (1966, in force 1976). The Council of Europe adopted the European Convention of Human Rights (1951, in force 1953) and the European Union came up with the Charter of Fundamental Rights as late as in 2000. The two Vatican Councils in 1962 and 1965 showed the position of the Catholic Church in the 20th century while supporting the protection of religious liberty. The Declaration on Religious Freedom (Dignitatis Humanae) was firstly aimed to be a part of the Declaration on Ecumenism but it was amended and detached as a single document in the end.47 The Declaration states that “human person has a right to religious freedom”.48 Individuals as well as social groups can enjoy this civil right without any coercion, provided that the public order is observed. The government has to take all necessary measures to ensure the peaceful execution of the right. “Furthermore, society has the right to defend itself against possible abuses committed on the pretext of freedom of religion”.49 Although the Declaration refers to the State’s guarantees it stresses the requirement of State’s and Church’s autonomy. The document served as a basis for the diplomatic activities of Holy See during the Conference on Security and Cooperation in Europe (Helsinki 1975). Thanks to the adoption of the ECHR, the tolerance of religion in Europe is effectively enforced by national law as well as by supranational organization. This however does not mean that the religious freedom is borderless and there are no conflicts between the religious groups as will be described later.

46 Labuschagne, B. C. – Sonnenschmidt, R. W.: Religion, Politics and Law – Philosophical reflections on the sources of normative order in society, pp. 86 – 91. 47 Dignitatis Humanae was pronounced in December 7, 1965. 48 Dignitatis Humanae. 49 Ibidem.

4. INSTRUMENTS TO SECURE THE FREEDOM OF RELIGION IN EUROPE

The freedom of religion in Europe is mostly secured by two mechanisms – the Council of Europe and the European Union. While the first one was established mainly because of political cooperation and protection of human rights, the purpose behind the European Union integration was purely economic. Therefore the European Court of Human Rights is more active on the field of protection of the freedom of religion in Europe than the European Court of Justice. Additionally the EU institutions are reluctant to adopt certain legal acts which would unify the approach towards religious issues all across the Member States. This attitude is understandable as the human rights are not on the hotspot of the EU agenda. In any case, this might change in future as the Charter of Fundamental Rights gives greater legal basis to the EU institutions for possible effort to unify religious freedom.

4.1. The European Convention on Human Rights

The system of human rights according to the Council of Europe is being considered as one of the most sophisticated in the world. The case-law of the European Court of Human Rights helps to understand better the comprehension of the freedom of religion in Europe as the ruling of the Court has significant impact on it.50 The European Convention on Human Rights,51 which belongs among the most important law documents of the CoE, ensures the freedom of religion in couple of articles. Article 9 is the fundamental article of the ECHR dealing with the freedom of religion. To find a definition was not an easy task which encountered many obstacles “any definition of religion, including the proposed one, is apt to be inadequate and culturally biased, but analysis of the role of “religion” in the international legal system requires some basis for distinguishing it from other belief systems, especially ideologies”. 52 The Council of Europe, however, did not extend the definition in the ruling of its court much. The European Court of Human Rights is reluctant to take a strict approach which might be against the interest of Member States. Additionally

50 In my opinion it is beyond the scope of the thesis to discuss in detail the history of the Council of Europe as well as the history of the European Court of Human Rights. 51 The ECHR was adopted on November 4, 1950 and entered into force in October 3, 1953. 52 Janis, M. W. – Kay, R. S. – Bradley, A. W.: European Human Rights Law – text and materials, pp.339.

once the ECtHR took a strict position the Member States critically respond to the decision as the Court was enforced to change it. The values of Article 9 are at the foundation of a democratic society according to the ECtHR.53 Article 9 states that:

“Everyone has the right to freedom of […] religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance”. (Article 9 para 1)

This freedom “shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”. (Article 9 para 2)

It is clear that Article 9 of the ECHR was inspired by Article 18 of the Universal Declaration of Human Rights.54 It has two dimension elements – internal and external. The internal dimension (forum internum) guarantees the right to exercise the freedom of religion in individual’s heart and mind and it cannot be restricted by State’s authority.55 The external dimension (forum externum) allows manifesting the freedom of religion on the public and can be subject to restrictions according Article 9 para 2. According to the ECHR the rights arising from Article 9 of the ECHR can fully enjoy the natural persons as well as legal persons.56 The legal persons can enjoy the rights from the Article 9 if they are primarily settled for the religious and philosophical aims. Therefore their

53 In Kokkinakis v. Greece (1993) the Commission hold that “it is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned”, para 31. In Hasan and Chaush v. Bulgaria (2000) stated that the “autonomous existence of religious communities is indispensable for the pluralism in a democratic society”, para 62. 54 The Article 18 of the Universal Declaration of the Human Rights states that “everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance”. 55 Darby v. Sweden (1990). 56 See X. and Church of Scientology v. Sweden (1980). The complaint based on Art. 9 can raise the natural persons only; see Church X. v. United Kingdom (1968).

main purpose cannot be to gain a profit. This condition does not denude them from the possibility to acquire a possession.57 The State authorities can limit the freedom of religion only in accordance to the law when necessary in the democratic society and only on the grounds of exhaustively settled reasons.58 The measures which are compatible with the provisions of article or beyond it were specified in the case-law of the ECtHR.59 The ECHR includes some other provisions which mention the freedom of religion. The general prohibition of the discrimination in Article 14 which strictly prohibits any discrimination based on religion is one of them.60 Religious grounds for the discrimination are also prohibited according to the Protocol No. 12 Article 1. To the concourse of the freedom of religion with other rights may resort in case of right to a fair trial (Article 6) and right to an effective remedy (Article 13), right to respect for private and family life (Article 8), freedom of expression (Article 10) and freedom of assembly and association (Article 11).61 The conflicts with some of these rights are explained in the following chapters. Article 15 ECHR states which rights could be derogated in time of war or other public emergency. Article 9 is missing in the list. In contradiction to this provision the International Covenant on Civil and Political Rights (ICCPR) states in the Article 4 that the freedom of religion is non-derogable. As all member States of the ECHR ratified the ICCPR they are bound by it not to derogate Article 9 of the ECHR as well.

57 See Omkarananda and the Divine Light Zentrum v. Switzerland (1981). 58 The State authorities have the possibility of a margin of appreciation while considering the measures taken to limit the freedom of religion, see Handyside v. United Kingdom (1976). The doctrine grants States a certain margin to decide how to implement the ECHR standards in a way appropriate to the domestic conditions. The concept of margin of appreciation is not unlimited. The State authorities must consider the level of consensus, on the issue in other Member States of the Council of Europe, the scope of the interference to the private life of applicant, necessity for the democratic plural society and specific background of every single case. Evans, C.: Freedom of Religion under the European Convention on Human Rights, pp. 139. 59 The case-law which is relevant to the thesis is described in the following chapters which deal with the concrete issues. 60 The ICJ imposed an obligation on Member States to treat different cases differently. “Those who refuse to comply with law for religious reasons were to be treated differently from other law-breakers when it came to the application of subsequent civil penalties”. Thlimmenos v. Greece (2000). 61 Spratek, D.: Evropská ochrana náboženské svobody, pp. 66.

The right to the education of children with respect to the religious and philosophical convictions of parents is ensured by the Protocols No. 1 and 2 to the ECHR.62 These rights are applied mainly through the Church schools and religious education. The ECHR does not specify what the term “religion” exactly means. There are no preconditions such as width or institutionalization. While the world-wide recognised religions do not have a problem to fall into the scope of the ECHR, the question is raised when the newly established religious groups or movements want to enjoy these rights.63 The approach to avoid any determination of the term “religion” is understandable as any definition would need to be flexible and precise in the same time. It would be almost impossible to achieve such a balance. So it is up to the ECtHR to decide what the scope of Article 9 is.64

4.2. Other conventions within the Council of Europe

The ECHR constitutes the most significant document in the system of the European Council. However other documents in its framework which deal with the religious freedom exist. The Convention for the Protection of National Minorities is one of them.65 Articles 5, 6, 7, 8 and 17 binds States to enable national minorities to preserve their religion, to respect it and not to interfere with its practice. The European Convention on Extradition is another document.66 It is Article 3 that states extradition shall not be granted if there are substantial grounds for belief that the person would be punished or prejudiced on account of his religion.67

62 According to Campbell and Cosans v. United Kingdom (1982) belief must “attain a certain level of cogency, seriousness, cohesion and importance”. The ECtHR also examined if the political belief is beyond the scope of protection under Article 9 or not, X. V. Austria (1963) and Arrowsmith v. United Kingdom (1978). The both complaint were rejected. While philosophical beliefs such as communism, fascism, neo-Nazi principles, opposition to abortion, pacifism and veganism fall into the scope of the Article 9. 63 See case law concerning Buddhism in X. v. United Kingdom (1975), Islam in X. v. United Kingdom (1981), Sikhism in X. v. United Kingdom (1982), Judaism in D. v. France (1983), Hinduism in ISKCON v. United Kingdom (1994), the Jehovah’s Witnesses in Manoussakis v. Greece (1996), Christianity in Stedman v. United Kingdom (1997) and the Church of Scientology in Church of Scientology Moscow v. Russia (2007). 64 Cumper, P.: Article 9: Freedom of Religion, in Harris, D. - O’Boyle, M. - Warbrick, C. (eds.): Law of the European Convention on Human Rights, pp. 426. 65 Framework Convention for the Protection of National Minorities (1995). 66 Convention on Extradition (1957). 67 The concept of so-called principle of non-refoulement which is applicable mainly in relationship with the Article 3 ECHR (prohibition of torture, inhuman or degrading treatment or punishment) could be seen there.

The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data is the last document being considered.68 Domestic law must provide appropriate safeguards in order to avoid reveal of the personal data of religious or other beliefs (Article 6).

4.3. Protection of human rights in the primary law of the EU

The European Coal and Steel Community (ECSC) as well as European Energy Community (Euratom) and the European Economic Community (EEC) were established for economic cooperation rather than for the human rights promotion in the Europe. The human rights question has become a part of the agenda as the European Communities’ integration and Europeanization of different areas once belonging to each state deepened. During the 1970’s the European Court of Justice (ECJ) without mandate in the basic treaties initiated its competence for human rights69 especially with relation to labour law. The ECJ developed so-called constitutional traditions common to all Member States which were applied in its judgements. The first remark on human rights following the course adjusted by the ECJ could be found in the Single European Act which stated that EEC is “determined to work together to promote democracy on the basis of the fundamental rights recognized in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice”.70 Although this was rather a political declaration than the document which would bind the parties it was a signal to the ECJ that its attitude towards human rights might be supported in future. The effort was successfully crowned couple of years later in Treaty on European Union (TEU). So- called Maastricht Treaty in Article F (consolidated Article 6 para 2 TEU) confirmed that the EU “shall respect fundamental rights, as guaranteed by the ECHR [...] and as they result from the constitutional traditions common to the Member States, as general principles of Community law”.71 The Treaty of Amsterdam repeated the principles from the TEU and gave the ECJ power to decide whether the institutions have failed to respect fundamental rights (consolidated

68 Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (1981). 69 The first case, in which the ECJ ruled on fundamental rights was Stauder v. Stadt Ulm (1969), however more cases were issued later. 70 Preamble of the Single European Act (1986). 71 Treaty on European Union (1992).

Article 227 TEU).72 The Member State which seriously breaches Article 6 could be subjected to suspension of certain rights including the representation and voting rights in the Council (consolidated Article 7 TEU). The Treaty of Nice settled the possibility of recommendations to Member States (consolidated Article 7 TEU)73 and the Charter of Fundamental Rights (Charter) was proclaimed. As the Charter was not binding document its position has changed after the ratification of the Lisbon Treaty,74 when Charter became a part of primary law.75 Due to the fact that the European Court of Justice did not have a legal basis for the ruling there are not many cases which concern the freedom of religion. Nonetheless the relevant cases will be considered in the following chapters.

4.4. Charter of Fundamental Rights

The idea of the creation of the Charter of Fundamental Rights dates back to 1999 when the European Council decided to reflect the current situation of the human rights. It sorts rights into three categories: rights of freedom and equality, rights of European citizens and economical and social rights. The freedom of religion includes right to change religion and manifest it privately or in public alone or in community (Article 10 para 1). There is a provision about the right to conscientious objection in accordance to the national laws (Article 10 para 2). The right to conscientious objection for military service was not included to the ECHR since contrary to nowadays it was not a relevant issue at that time. The Charter signifies the step forward in this particular case. Article 10 is not comprehensive as the Article 9 of ECHR. Moreover it does not specify any limitations of the freedom of religion. The Member States of the EU are parties to the ECHR so they are bound by its text. The Member States of the EU showed that the Charter is dependent on the ECHR and the ruling of the ECtHR has significant influence on the comprehension of the rights guaranteed by the Charter.76

72 Treaty of Amsterdam (1997). 73 Treaty of Nice (2001). 74 Lisbon Treaty (2007). 75 Charter is not legally binding in Poland and the United Kingdom. 76 Text of the explanations relating to the complete text of the Charter, available at (http://www.europarl.europa.eu/charter/pdf/04473_en.pdf).

Article 10 relates to other articles such as Article 21 which prohibits discrimination based on ground of religion or belief (this article is fully compatible with the consolidated Article 13 TEU). Article 22 specifically states that the EU shall respect religious diversity. Implicitly Article 9 (right to marry and right to found a family) and Article 14 (right to education) are connected to freedom of religion as this freedom must be respected while executing the rights rising from these articles.

4.5. Other instruments within the European Union

Contrary to primary law, European regulations and directives contain numerous provisions pertaining to religion. They set uniform exceptions to certain provisions of the European law or permit national-based treatment to churches. Member States mainly regulate the working time (Directive 2003/88/EC) and loyalty oaths (Council Directive 2000/78/EC). The exceptions are provided to kosher butchering (Regulation 853/2004, Council Directive 95/23/EC, Council Directive 93/119/EC) or media law (it is prohibited to interrupt the broadcast of church services by commercial advertisements, Directive 97/36/EC).77 Although the reference to religious exceptions is incorporated in secondary legislation, often the final consideration is almost in all cases vested on the Member States. As a result different situations for the same issue may occur within European territory.78

4.6. Conclusions

The ECHR is an important document which elevates the protection of the human rights to another level. Although the derogation of Article 9 in which scope the freedom of religion belongs, is permitted. As was stated above, Member States of the ECHR are nevertheless bound by the ICCPR which prohibits derogation of the freedom of religion in any situation. One of the biggest contributions of Article 9 is that it exhaustively specifies the conditions in which the State’s authorities can interfere with the freedom of religion. The

77 For more information see Heinig, H. M.: Law on Churches and Religion in the European Legal Area – Through German Glasses, German Law Journal, Vol 8, No 6, 2007, pp. 563 – 576. 78 As the EC legislation does not regulate the religious symbols so far more detailed description of all provisions will not be provided in the essay. The relevant acts would be reflected in the chapters devoted to each issue.

case-law of the ECtHR interprets the text of the ECHR and in the same time provides the valuable clue for the national courts’ ruling. In case of non-conformity of national law or national case-law with the text of the ECHR the applicants can raise a complaint against the ECtHR which ruling is obligatory for the Member States. The European Union does not have broad practice in the human rights enforcement. As religious freedom was on the edge of interest there are not many primary law sources as well as case-law dealing with this issue. The Charter of Fundamental Rights might change this position in future as the European Court of Justice has a legally based jurisdiction in this area. The Charter is dependent on the text of the European Convention on Human Rights, especially on the case-law of the European Court of Human Rights. So the text of the Charter is not such specific as the ECHR but on the contrary it provides the conscientious objection which was not considered in the ECHR.

5. FREEDOM OF RELIGION AS AN ISSUE

Many scholars, lawyers, politicians and citizens are trying to find an answer to the question: where is the frontier of the freedom of religion in the ever changing world? The terrorist attacks of September 11, 2001 changed the world’s views of not only Islam but of all religions. Suddenly people started to think more about the threat of religious fanaticism and propaganda. The reactions of States to the situation were varied, some States followed their liberal approach but many chose to restrict religious freedom by passing new laws. This debate about religious freedom is relevant and important in today’s society. The following chapters will indicate the most controversial issues and sum up the reactions of the three spheres of society – politicians, judges and citizens. It should be noted that the Member States of the European Union take varied stances on the debate of religious freedom. It is obvious that the feelings would be different in a territory of centralized secular State full of immigrants (e.g. France) compared to a Christian nation (e.g. Poland) living in federal state (e.g. Germany). As such, it is difficult to find a “common European position” even if we look at the rulings of the European Court of Justice and the European Court of Human Rights because of the fact that the opinion of these courts may not be in conformity with the decisions of politicians or feelings of European citizens.

5.1. How are the tensions created?

The answer to why the right to religious freedom is under increasing pressure in Western society today is not one-dimensional. Rex Ahdar and Ian Leigh partially explain the major factors for this. Firstly it is because the number and diversity of religions is rising. “Homogeneous, cohesive societies with an implicit and stable consensus on moral, social and religious values are rarer in the West than they used to be”.79 Thanks to globalization, modern communication technologies and immigration, religious ideas can spread much faster than ever before. Secondly, a rapid growth of Islam in the Western world can be seen due to the great immigration of Muslims. The third reason is that the State expands to intervene in most areas of human interactions. “If I wish to discipline my children, refrain from taking

79 Ahdar, R. - Leigh, I.: Religious Freedom in the Liberal State, pp. 5.

advantage of life preserving medicine, construct a place of worship, hire only workers who share my faith, the state will have something to say about it”.80 Lastly, States or rather society in general is under pressure to be neutral. States enforce the neutrality of citizens by force (through acts and case-law) which might endanger religious freedom as such.81 All of these reasons make the debate about freedom of religion real and explosive. To enforce a State’s neutrality as well as the neutrality of its citizens is probably the most delicate point and causes explosive reactions. People in Europe are used to equality for every single human being. Due to exceptions granted to the religious minorities some feel that the principle of equality has been compromised. The problem of balancing the rights and freedoms is that it may result in disadvantaged position of infidels or the exceptions might be granted to world-wide religions for the sole purpose of diversification between religions and beliefs.82 The conflict between freedom and equality,83 equality and diversity, and the West and the East are issues which influence the current discussion.84 The balancing act of providing freedom of religion along with other human rights and freedoms as well as the existence of exceptions is never-ending circle in which one subject influences the other. There is yet to be an answer to this problem, but there are several current opinions.

5.2. Judicialization of politics

In 1954, the revolutionary judgement Brown v. Board of Education was issued by the Supreme Court of the United States. Ten years later, only 1.2 percent of Afro-Americans attended unsegregated schools in the southern States of the former Confederation. What has happened? The recommendation of the judgement was not implemented by the politicians. However, when the special acts were adopted in 1960, the executive obtained an effective weapon to fight against segregation. As a result 91 percent of Afro-Americans

80 Ahdar, R. - Leigh, I.: Religious Freedom in the Liberal State, pp. 6. 81 Ibidem, pp. 5 - 6. 82 Martinková, J.: Náboženské výnimky, pp. 55. 83 There are two approaches dealing with conflict of freedom and equality. One says that these values are inhomogeneous and so the choosing one inevitably means repressing the other. Another approach is trying to find harmony between them. See Dworkin, R.: Justice in Robes, pp. 105 – 116. 84 For more information about the equality and discrimination see Bobek, M.: Rovnost jako právní problém, in: Bobek, M. - Boučková, P. - Kühn, Z. (eds.): Rovnost a diskriminace, pp.1 – 32.

attended unsegregated schools in the 1970s.85 Why should one be concerned about the American case in an essay about the comprehension of the freedom of religion in the EU? The answer is the case described is a great example of the judicialization of politics. Although the majority of EU countries do not accept the theory of binding precedent law, there is no doubt about the significant impact that the judiciary sphere has on politicians. A similar situation occurred in Germany. In 1980, the Federal Constitutional Court of Germany had issued a decision that called for a change in the differential taxation of civil servant pensions and regular retirement benefits.86 Although the parliamentary commission was established to study the revision of the tax code, the law remained unchanged for more than twenty years. Politicians did not openly challenge the ruling of the court, rather they acknowledged it but they failed to implement it. Judicial activism87 has become prevalent in the current debate on the role of justice in government. However, the discussions regarding the general position of justice in the separation of powers are not something new. The judiciary mainly reviews the constitutionality of acts. An important implication for the judicialization is the consideration of who may initiate a legal challenge before the court and at what stage. There are two distinct processes which courts might be presented with – abstract review (a priori) or concrete review (a posteriori). The abstract review refers to the situations, when the courts consider the constitutionality of a law with absence of a certain case or controversy (the scenario “what if,” hence the abstract review). In a situation, where there is a specific legal dispute, however, the concrete review is examined by the court. The courts generally have power to conduct either a priori or a posteriori. The possibility of abstract control of constitutionality gives European constitutional courts an unprecedented position which might sometimes serve as a third chamber of parliament with the absolute right to veto. This power given to courts made them important actors which can radically change the current order in the society and politics. There are several ways of how the courts influence politics. The highest courts often exploit their right to revoke the acts and thus fundamentally intervene to ordinary usual

85 Wágnerová, E.: Rovnost a diskriminace, in: Bobek, M. - Boučková, P. - Kühn, Z. (eds.): Rovnost a diskriminace, pp. v-viii. 86 BVerfGE 54, 11. 87 In the subchapter the word “court” and “judiciary” denotes the highest courts in the countries as the ruling of these courts have a significant impact on the politics and society.

approval process of laws in parliament. Secondly, the politicians are required to act on the issued judgements and adopt special laws or avoid including certain provisions in them. The key role of courts in the influencing politics is obvious. Judges often consider hot issues and through judgements address core moral predicaments, questions and controversies of public policy. In addition to national courts, there are also transnational courts and tribunals, which have become the core place for coordination of policies either at the global or regional level.88 “Not politicians or the demos itself are the appropriate fora for making these key decisions”.89 In order to perform such roles the basic assumption required is the necessity of an independent judiciary and respect for the rulings by public and politicians. But what exactly does the term “independent” means? How can judges be independent when they are appointed by executive power (thus politicians) and their budget is subject to parliamentary approval? Even if there is a transparent mechanism of appointment and the judiciary is as independent as possible, there are still possibilities to influence the judges. Leaving aside bribery and other illegal activities, judges do not live in a vacuum. Therefore social debates, the atmosphere in the State or the region, media and affiliation to certain religion, ideology, etc. may play a substantive role in the decision process. As the debate about the personal background in America is a current issue, several American scholars90 published essays on the impact of all these factors on the decision in delicate cases. Moreover, the courts do not have any institutional capacity to enforce their rulings. The enforcement is entirely dependent on the administrative institutions which are subject to the influences of politicians. Thus, judges always have to bear in mind the extent of the decisions’ impact on the public and predictable political support or opposition. It would be inaccurate to proclaim that judges issue only statements which would be fully supported by politicians. The practice is contrary, as will be examined later. Naturally, judges hope to have an impact on political decisions or at least to set a framework for them. Therefore they have to be sensitive to the possibility of legislative invasion. “Consequently, they may attempt to anticipate how legislative majorities will respond to the court’s ruling and these

88 Hirschl, The Judicialization of Politics, in: Whittington, K. E. – Kelemen, R. D. – Caldeira, G. A. (eds.): The Oxford handbook of law and politics, pp. 119. 89 Ibidem, pp. 120. 90 See for instance Berg, T. – Ross, W.: Some Religiously Devout Justices: Historical Notes and Comments, Marquette Law Review, Vol 81, No 2, 1998, pp. 383 – 415. Or Sekulow, J.: Witnessing their faith. Religious influence on Supreme Court Justices and Their opinions, New York: Rowan and Littlefield, 2005. Or about the European judges’ background influence to the decision of the court Arold, N. L.: The legal culture of the European Court of Human Rights, Leiden: Martinus Nijhoff Publishers, 2007.

anticipations can shape judicial behaviour. At the same time, legislative behaviour may be conditioned by anticipation of constitutional review”.91 I do not want to say that judges are not impartial and that they serve as a mean of politicians. Meanwhile I want to stress that they are under great pressure, especially in cases on the eruptive issues and that their decision cannot be purely independent based on the political, social and personal background. I agree with the opinion of Hirsh who says that “the courts are first and foremost political institutions. [...] Their establishment does not develop and cannot be understood separately from the concrete social, political, and economic struggles that shape a given political system. Indeed, constitutionalization, political defence to the judiciary, and the expansion of judicial power more generally, are an integral part and an important manifestation of those struggles, and cannot be understood in isolation from them”.92 Additionally, the powers of the courts are based on laws; hence the catalogue of constitutional rights which will undergo the judicial review is a bare minimum. Nevertheless the courts also may rely on international treaties which are ratified by the State as a relevant source for their ruling even if a certain right is not reflected in the national legal order. The term judicialization covers a couple of interrelated processes. Firstly, it refers to “the spread of legal discourse, jargon, rules and procedures into the political sphere and policy- making fora and processes”.93 The threat of possible judicial action may result in a powerful influence in the struggle between political parties, especially the government and its opposition. Judicialization is not only one-way process, starting from judge’s side and flowing to politician’s arena. Conversely, politicians may seek to judicialize politics. It happens quite often that the politicians or parties organize petitions or participate in other ways to obstruct government’s decision which may resort to litigation. Additionally, putting issues before courts may clean their hands and bring important media exposure, regardless of the result of the litigation.94 Secondly, probably the most important dimension of the judicialization of politics is tackling core political controversies. The politicians rely on courts in the disputes over elections and the division of executive powers. Moreover, the task of courts is to deal with

91 Vanber, G.: Legislative-Judicial Relations: A Game-Theoretic Approach to Constitutional Review, American Journal of Political Science, Vol 45, No 2, April 2001, pp. 348. 92 Hirschl, The Judicialization of Politics, in: Whittington, K. E. – Kelemen, R. D. – Caldeira, G. A. (eds.): The Oxford handbook of law and politics, pp. 134. 93 Ibidem, pp. 121. 94 Ibidem, pp. 130.

history. Naturally, many countries established commissions for truth and reconciliations or special institutes and other quasi-judiciary institutions; however rulings of the constitutional courts have a significant impact on the feelings of society and the actions of politicians. The constitutional courts are the ones who formulate a collective identity and help to cope with the atrocities from history. “The emerging areas of judicialized politics expand the boundaries of national high-court involvement in the political sphere beyond the ambit of constitutional rights or federalism jurisprudence, and take the judicialization of politics to a point that far exceeds any previous limit”.95 The way how the constitutional courts resolve so-called “hot potatoes” strengthens their position and it indicates the direction of the further political steps towards the issue. The political activists, social movements and interest groups may start the “bottom-up” process of judicialization. The process of public and politicians’ mobilisation will be described on the headscarf debate in France. The counterpart process of a “top-down” judicialization of politics, when the process is started by judges and reflected in the political decisions and public debate, will be examined in the case of the headscarf debate in Germany. Finally, there is a significant determination of “public policy outcomes through administrative review, judicial redrawing of bureaucratic boundaries between state organs, and ordinary rights jurisprudence”.96 Through rulings the courts in Europe redefine the boundaries of the private sphere and transform policy areas almost every week. However, this is not only a job of national courts, rather it includes transnational ones. The last century was friendly for the establishment of numerous international tribunals, commissions and panels dealing with economical and human rights affairs. There are two important judiciary institutions in Europe – the European Court of Human Rights and the European Court of Justice. While the ECJ mainly interprets the EU treaties and has been awarded an increasingly important status particularly in relation to the economic disputes resulting from the EU law, the main goal of the ECtHR is to ensure the protection of human rights and freedoms of individuals. The ruling of both courts forced many countries to adapt their legal order to the so-called EU or Strasbourg standard. Hence the symbolic weight of judgements at the European level is undoubtedly significant. Both courts developed many legal principles (the margin of appreciation, subsidiarity, the primacy of the EU law, etc. belongs among the

95 Hirschl, The Judicialization of Politics, in: Whittington, K. E. – Kelemen, R. D. – Caldeira, G. A. (eds.): The Oxford handbook of law and politics, pp. 123. 96 Ibidem, pp. 121.

most famous ones) which were incorporated into the law (either national or European) or at least widely used by lower courts and reflected in the politicians considerations. Additionally both courts optimize various methods of interpretation in order to widen their jurisdiction over matters which they were primary not intended to be associated with (such as human rights in the agenda in the ruling of the ECJ or definition of the term of national security by the ECtHR). On the other hand, both courts are under constant threats that their ruling will not be respected and their unwelcome activism and intervention to the areas which traditionally belong to the national sphere of competence would be disregarded. This is not simply a hypothetical concept that cannot happen, rather it is evident from the Lautsi case concerning display of crucifixes in Italy.97 However, this does not only impact international courts, national courts face the same threat. Generally, democracies with a high degree of public support for the courts have an easier position to revoke the legislation which will not comply with the judicial rulings. The possible fear of legislators to oppose the powerful court may result in inducement of executive power to respect the judicial decisions and hence implement the rulings to the national law.98 Meanwhile this is not true in all cases and the support mostly depends on the topic involved. The crucifix debate in Germany may serve as a good example in this case.99 It is clear that there is a profound shift of power from political institutions to judiciary and the mutual interaction between both actors is a common process in nations around the world. In selected cases the essay will demonstrate the impact of decisions between such actors in order to confirm the statement that the courts are important players who shape the challenges in current democratic societies.

97 For more information see chapter 7 – Crucifixes. 98 Vanber, G.: Legislative-Judicial Relations: A Game-Theoretic Approach to Constitutional Review, American Journal of Political Science, Vol 45, No 2, April 2001, pp. 347. 99 For more information see Chapter 7 – Crucifixes.

6. THE CONSTRUCTION OF MOSQUES

The new problem appeared in traditionally Christian Europe a couple of years ago – the building of mosques with minarets. European citizens do not have a problem with building a Christian church or a Jewish synagogue; however a mosque with minarets incites fiery discussions. There are only a few exceptions in the European Union where the population is quite used to seeing mosques ordinarily. These are Andalusia and Sicily, places which were under Muslim domination in the past. The other region is the Balkans, especially countries such as Bulgaria and Greece, which were under Ottoman rule for centuries. The small Tatar presence in Finland serves as the last example of greater impact of Muslim society on EU Member States. Additionally, in other EU countries there are some mosques which were established for various reasons. The United Kingdom allowed the construction of mosques for commercial and mercantile interests in port cities. Due to colonization and after decolonization some mosques appeared in France, the Netherlands and the United Kingdom as well.100 The new phenomenon is obviously linked entirely to the immigration from Muslim countries to Europe. Muslims in today’s Europe fights for their place in the society and they are asking “two hundred years ago the first Protestant church was built in Cologne. It was a long process for Protestants to be accepted but today, of course, they are. Why can’t we be the same”?101 Today, there are about 18 million Muslims in the EU, who gather in more than 6 000 mosques. The highest ratio of mosques to the Muslim population is in the Netherlands, the lowest in Sweden.102 In an ideal world, this chapter would deal with religious buildings generally or it would be better to simply not include it, however, as mostly one religion is in the focus of politician’s and judiciary’s interest, the main debates are only relation to the building of mosques. This chapter is unique as the model of the other chapters is not followed. Because the majority of cases have never been put before court and are decided by bureaucrats and building permits and zoning regulations, I describe the examples entirely without separating the actors. Hence the chapter is not divided into two parts as the previous ones – judiciary

100 Allievi, S. (eds.): Mosques in Europe – Why a solution has become a problem, pp. 18. 101 Huge mosque stirs protests in Cologne, The Telegraph, 25. 6. 2007. 102 Mosques increasingly not welcome in Europe, USA Today, 17. 7. 2008.

vs. political decisions and public debate. This chapter is not exhaustive since cases regarding the building of mosques exist in every EU Member State. Due to the fact that the conflicts are similar in all countries, I decided to analyze the selected cases according to specific model of approaches. The cases were chosen from countries with strong Muslim minorities.

6.1. The political and social debate

Thanks to vastness of the Habsburg Monarchy’s territorial reach, Austria was the first country to recognise Islam in 1912. There are only around 300 000 Muslims in the country, nevertheless they amount to 4.1 percent of the population.103 The Turkish Islamic Union for Culture and Social Cooperation in Austria (ATIB) is one of the largest Muslim cultural- religious centres in the country and is mostly involved in the current disputes. The headscarf and the minaret are hot topics in Austria. While the approach to headscarves is quite liberal, mosques with minarets are considered a threat to traditional Christian values of Austria’s society. Austria was the first European country which forbade minarets in regions of Carinthia and Vorarlberg in 2008. The idea to prohibit minarets in Carinthia originated from the dispute which was held in Spittal and der Drau. The local association representing Turks applied for a creating a prayer room in 2006. After the receiving preliminary approval from the mayor, the neighbours started a petition in which they claimed that the prayer house would not fit in the old city zone and it would worsen parking problems. The city council rejected the application in 2007 and the Association appealed against the State government. The main promoter of anti-Islam practices is the far-right populist Freedom Party of Austria (FPÖ) renowned for its former leader Jörg Haider.104 The party is well-known for racist rhetoric and xenophobic political program.105 During the elections in Graz in 2008, Haider, the governor of Carinthia, spoke against the minaret and demanded a ban on the building of mosques

103 Muslims in Europe: Country guide, BBC News, 23. 12. 2005, available at (http://news.bbc.co.uk/2/hi/europe/4385768.stm#austria). 104 Minarets in Austria also pose problems, 12. 10. 2009, available at (http://www.infosud.org/spip/style/squelettes/squelettes/IMG/pdf/images/images2/spip.php?article6725). 105 In the parliamentary elections in 1999 they became with the slogan “Stop alienation” the second largest party. After forming a coalition with the Austrian People’s Party (ÖVP) the government was boycott by the EU countries. The rhetoric is not surprising as many members have Nazi history. FPÖ gegen „Überfremdung“ oder: Wie Nazi-Diktion salonfähig wird, available at (http://www.doew.at/projekte/rechts/chronik/1999_09/stop1.html).

with minarets. The party even used as a motto “our demand is a ban on mosques” in the election.106 Soon Haider announced the proposal to change building regulations in Carinthia.107 The appeal to the State government was launched and it overruled the official notification of the city council in autumn 2007. In February 2008 the State government passed a proposal to amend the building law which states “any building which because of its extraordinary architecture or size essentially differs from the local building tradition requires the approval of a special commission for the maintenance of community appearances”.108 The law was adopted by the parliament of Carinthia in December 2008. The approval to redesign the building in Spittal an der Drau was granted in 2009 as a result of the new discussions round. Anyway there is a strong feeling among the society to increase the number of Austrian States with legislation banning minarets.109 Although Belgium has only less than one half of a million Muslim inhabitants, they make up 4 percent of total population.110 Hence the question of Islam, mosques and minarets is vivid in the country. The strongest opponent to immigration, Islam, French- speakers and any contamination of the purity of the Flemish identity is the Vlaams Belang. Despite of the fact that it could be characterised as the Flemish nationalist right-wing party, its extremists program is supported by many people. One of the strongholds of the party is the cosmopolitan city of Antwerp. In 2001, the local Islamic Association came with plan to purchase a burnt property next to the current mosque and rebuilt a new, bigger one instead. The Vlaams Belang organised protests, made sabotage actions and launched a petition which was not widely supported. The party decided to appeal to the State Council and the Council sent a letter to the Association in order to suspend the construction. However the local authorities decided to grant the permission to continue the work on the mosque. In 2003, the Association organised a variety of demonstration to support building of mosque and oppose the activities of the Vlaams Belang. Another appeal went before the State Council, who decided in favour of the Association in 2004. Although the Vlaams Belang made a lot of obstructions, the mosque was officially completed in 2009.

106 Allievi, S. (eds.): Mosques in Europe – Why a solution has become a problem, pp. 187. 107 FPÖ also demanded in a motion for a resolution to ban the building of minarets in the Austrian parliament in June 2007. Kärnten beschließt ein Gesetz gegen Moscheen, Die Presse, 11. 2. 2008. 108 Landesgesetzblatt Nr. 10/2008 6. Stück. 109 See the case of mosque in Bad Vöslau. 110 Muslims in Europe: Country guide, BBC News, 23. 12. 2005, available at (http://news.bbc.co.uk/2/hi/europe/4385768.stm#belgium).

France is one of the countries with the highest percentage of Muslims in Europe (8 percent) as more than 5 million of them live there.111 It is also the country with a religious symbols’ law regulation on a national level. However, the approach to building of mosques is not as strict. Nevertheless this does not mean that there is any controversy concerning mosques. France disposes with a special institution which deals with Islam; the French Council of Muslim Religion was established in 2003. Naturally, the right-wing parties with anti-Muslim discourse exist in France. Probably the principal figures are Jean-Marie Le Pen and his daughter Marine. Le Pen was the leader of the National Front (FN), former member of the European Parliament and almost successful candidate in the French presidential election in 2002. The second significant person, who represents the National Republican Movement (MNR) which split from FN, is Bruno Megret. Both parties strongly oppose the immigration, Le Pen in the elections in 1995 even proposed to send back three million non- Europeans out of France.112 The National Front regularly obtains seats in regional councils, national parliament as well as the European Parliament. The National Republican Movement also used controversial slogans during campaign. In 2004 the MNR went to the regional elections under the “no to Islamiation” motto. However the support of the MNR in the elections is not such broad as FN. Germany has more than three million Muslims which makes almost 4 percent of the total German population.113 The religious debates in the Germany are sensitive as can be seen on the case of crucifixes, burqas and mosques. In 2007, a draft called the “Wertheimer Appell“ appeared. It was published by the anti-mosque activists who called for giving more voice to citizens living near planned mosques sites into the decision-making process. The draft counted on the possible prohibition to build a mosque if the majority of residents votes in support of it. The draft also suggested banning minarets as they are a political symbol.114 As a result the Catholic bishops and the Central Council of Jews in Germany called for tolerance and pointed out the historical connotations as in the past the synagogues or churches have not been sometimes welcomed in Europe either. Interestingly the Islamic

111 Muslims in Europe: Country guide, BBC News, 23. 12. 2005, available at (http://news.bbc.co.uk/2/hi/europe/4385768.stm#france). 112 Fekete, L. (1995): Issues in the French presidential elections, available at (http://www.irr.org.uk/europebulletin/france/extreme_right_politics/1995/ak000006.html). 113 Muslims in Europe: Country guide, BBC News, 23. 12. 2005, available at (http://news.bbc.co.uk/2/hi/europe/4385768.stm#germany) 114 Wertheimer Appell, available at (http://www.moschee-schluechtern.de/texte/wertheimer_appell.pdf).

organizations which run mosques in Germany are generally monitored by the German Federal Office for the Protection of the Constitution for suspected Islamist tendencies.115 Even though passionate debates are lead about the crucifixes and veiling, the construction of mosques is not left behind in Germany. One of the recent cases which incited large discussion was a mosque in Cologne. The case has grown into such size that the critics of the construction cooperated internationally with other right-wing parties.116 In 2000, the Muslim community came with the idea of to build a new mosque, to be the largest in Germany, with a cultural centre for the community. The actor that started the discussion was the media. In 2007, they came up with articles about opponents and their radicalization.117 Although it was not true according to the previous surveys, the dilemma began. It was a perfect time for the extremist groups to start their work. The biggest groups involved in the discussion were Pro Köln118 and Pro NRW.119 The groups were in contact with other radical parties both in Germany120 and abroad.121 Interestingly the opposition to the mosque united Jewish intellectuals and neo-Nazis. The Jewish intellectuals were leaded by a prominent author Ralph Giordano who wrote that “Germany was witnessing a clash of two completely different cultures”122 and asked whether there was a possibility of reconciliation. As a response he had received death threats which added oil to the discussion. In August 2008, permission to build a mosque was granted by the city’s council.123 A month after Pro Köln organized an international anti-Islamisation Congress in Cologne. Interestingly the Congress concluded with fiasco. Some taxi and bus drivers refused services to them, many hotel keepers did not accommodate attendees, the bars stopped selling the local beer and the huge demonstrations took place.124 As the majority of Muslims in Cologne came from Turkey it is not too surprising that the Turkish Prime Minister Erdogan came to Cologne to support the integration of Muslims to German society and the building of mosque. Conversely he strictly divided “we Turks” and they “the Germans” in his speech. That was interpreted by

115 Bundesamt für Verfassungsschutz (BfV) is the domestic intelligence agency of the Federal Republic of Germany. It is based in Cologne and the department 6 runs the control over Islamic extremism and terrorism. 116 The Pro Köln and Pro NRW cooperated especially with FPÖ and Vlaams Belang. 117 Die beten und haben ein Messer in der Hose, Die Welt, 20. 10. 2007. 118 Pro Köln is a populist extreme right-wing group. 119 Pro NRW aligns itself with neo-Nazi National Democratic Party (NDP) which calls for stopping the Islamisation of Germany and is therefore strong opponent to mosques. 120 Namely with Deutsche Liga für Volk und Heimat, Republikaner and NDP. 121 Such as Vlaams Belang (VB) from Belgium and the Freedom Party of Austria (FPÖ). 122 Mosques are “land grab, not a place of prayer”, says Ralph Giordano, The Times, 6. 12. 2008. 123 Controversial mosque gets go-ahead in Germany, The Telegraph, 29. 8. 2008. 124 Cologne residents rally against anti-Islam conference, Taipei Times, 22. 9. 2008.

media as “you may live in Germany, but you are Turks and I am your prime minister”.125 The Prime Minister started another round of discussions, but regardless the construction started in the end of 2008. Although permission to the build a mosque was granted and the work has already begun, the struggle is not over. Pro Köln won seats on the city council recently and did not give up the effort to stop the construction. Moreover they believe that cooperation with FPÖ will gain them broader support.126 Pro Köln does not have a political ambitions on the federal level yet, however if it decides to participate in the federal elections, it will likely obtain several seats in the Federal Parliament.127 The number of Muslims living in the Netherlands is estimated to be one million, which makes almost 6 percent of the entire population.128 This figure puts the Netherlands among the top of the list of European countries with the largest percentage of Muslims. Same as in other countries, Islam is a sensitive issue for the Dutch. The anti-Islamic parties gain a great support in the political arena. The impact of debate about the mosques’ construction on the agenda of Dutch political parties could be demonstrated on the Rotterdam case. In 1996, the project to raise two 50 metre high minarets to mosque in Rotterdam was presented.129 The financing was promised by a Dubai-based foundation and the place was chosen in the modern area of the city. The Green Party seized the opportunity to mediate the discourse between parties. As the proposal was agreed by the municipal council as a positive contribution to the city diversity and people did not pay attention to the architectural form of the mosque, it was expected that the project would go smoothly. However the September 11 radically changed the climate and brought Islam-related topics to the political program of parties. In 2002, the populist Leefbaar Rotterdam party lead by Pim Fortuyn won local elections. His anti-Islamic mottos found the support in the society.130 As the preparations of the mosque, including building permits were almost finalized, it was impossible to stop the process.131 Nevertheless the war over the final appearance of the building began. The Leefbaar Rotterdam demanded more Dutch design and opposed the planned height of minarets and the dome. The party

125 Erdogan’s One-Man Show, Spiegel, 2. 11. 2008. 126 German far right emerges from shadows to join Cologne campaign against mosque, Guardian, 31. 10. 2010. 127 Anti-Islamic party is playing with fear, Spiegel, 1. 3. 2008. 128 Muslims in Europe: Country guide, BBC News, 23. 12. 2005, available at (http://news.bbc.co.uk/2/hi/europe/4385768.stm#netherlands). 129 Bekeerlingendag en bezoek Essalam moskee Rotterdam, Nieuwsfeit, 7. 1. 2008. 130 It is highly possible that he would win the national elections in the same year if he had not been murdered. 131 Mega Mosque in Rotterdam in Jeopardy, NIS News, 10. 7. 2003.

started discussion through media in which it criticized both the appearance of the building and the founding from Dubai Foundation. Anyway, the foundation stone was laid in October 2003, in the presence of the chief politicians, however the atmosphere was sceptical.132 The involvement of the national level started in October 2003, when the Dutch government was asked by three members of parliament133 to forbid the sponsorship of the mosque by Dubai Foundation. According to their opinion the Foundation is connected to terrorist activities. Nevertheless the government refused such link as insufficient to justify the prohibition.134 Money for construction of the Rotterdam mosque became a new topic of the political parties. Especially the Freedom Party put it on the agenda, followed by Social Democrats. In 2006, the power of the Leefbaar Rotterdam was reduced and the party was sent to the opposition. The mosque officially opened its doors in December 2010, despite the fact that there are still finishing touches to be made.135 In the 2010 election the Wilders’ Freedom Party (FP) became the second biggest party in the country and hence the major player in the political area. The success of the party clearly shows that Islam is an important topic for Dutch voters. The party is strongly anti- Islamic and it sends clear message that it does not want any new mosques in the Netherlands. According to the Dutch law the mosques have a right to issue the call to prayer through loudspeakers which have the same legal position as ringing church bells. The local authorities may issue a general rules about frequency, duration and sound pressure levels for such calls to religious services. On the other hand they cannot be prohibited as such. Yet the Dutch society is tolerant and in favour of multiculturalism even though the discussions about Islam are more frequent and radical after September 11. Nevertheless the construction of mosques does not bring much debate. The country in which almost 500 000 Muslims shapes 4 percent of the total population is Sweden.136 The country has become more and more open to other congregations and dominations other than Lutheran. Therefore the process naturally involved the acceptance of Islam in the society. On the other hand, a broad coalition against

132 Maussen, M.: Policy discourses on mosques in the Netherlands 1980 – 2002: Contested Constructions, Ethical Theory and Moral Practice, Vol 7, No 2, April 2004, pp. 149 – 160. 133 They were Eurlings (Christian Democrat Party), Wilders (Liberal Party) and Eerdmans (Pim Fortuyn List). 134 Onderzoek naar financiering moskeeën, Nieuwsfeit, 27. 11. 2007. 135 Essalam, a symbol of pride, opens its doors in Holland, The National, 23. 12. 2010. 136 Muslims in Europe: Country guide, BBC News, 23. 12. 2005, available at (http://news.bbc.co.uk/2/hi/europe/4385768.stm#sweden).

the unnatural character of mosques to Swedish culture has developed. Like every country even Sweden has its party against the immigration and especially against Muslims. They are called the Swedish Democratic Party (SD) and New Democracy. The parties with their strong anti-immigration rhetoric argue that there is no discrimination of Muslims and immigrants but insist instead that the problem is that Muslims and immigrations are unwilling to assimilate to the Swedish system. Logically, they argue, practicing Islam contradicts the Swedish way of life and therefore Muslims should leave the country. However, mosques appeared in Sweden as early as the 1970s. Anyway, there is a large discussion over mosque in Gothenburg right now. It reflects the current debate which is not hostile to construction of mosques. The opposition is led by SD and it criticizes the Islamist conquerors and cultural imperialism of Saudi Arabia which is supposed to sponsor the mosque in Ramberget.137 The opposition presents mosques as something unnatural and not fitting to Swedish culture. In order to urge citizens to protest the internet is extensively used. The construction of mosques also has a number of supporters, one of them is the Church of Sweden which develops activities to support the projects. In 2010, aggressive demonstrations against the building were organised138 and the police tried to keep some neo-Nazi demonstrators from counter-demonstrations. A couple of days before the beginning of the construction, about one hundred demonstrators headed by local neo-Nazis Nordic Youth group took part in the protests.139 However, construction started in April 2010 and was inaugurated in May 2011. Additionally, the Swedish mosques quite often suffer from vandalism, Islamophobia and threats. However, the mosques are not primarily target of attacks because of Islam but rather due to anti-immigrant feelings. This was a case of the destruction of mosques in Tollhättan (in 1993), Malmö (in 2003 and again in 2005) and finally Strömsund (in 2008). It could be concluded that Swedish society is more intolerant to immigrants than Islam, thus the attacks to mosques are not problem of religious intolerance. There are almost 2 millions Muslims living in the United Kingdom. They make 3 percent of the total amount of the population.140 The mosques in the country are quite

137 New mosque in Hisingen, Göteborg Daily, 12. 3. 2010. 138 New mosque stirs feelings at Hisingen, Göteborg Daily, 12. 4. 2010. 139 Demonstrators clash over Swedish mosque, UPI, 11. 4. 2010. 140 Muslims in Europe: Country guide, BBC News, 23. 12. 2005, available at (http://news.bbc.co.uk/2/hi/europe/4385768.stm#uk).

numerous although building permission is normally not given to one which would chant the call to prayer. Furthermore, it is not exceptional that the former factories or Christian places of worship are converted into mosques. The mosques are generally registered under the Places of Worship Registration Act (1855) in order to be exempted from local rates and taxes. The number of Muslims who involves themselves into politics is growing hence it provides a powerful mechanisms for lobbying and opportunity to influence of political parties. The representative of the right-wing party is the British National Party, whose main aim is to end immigration, repeal anti-discrimination laws and ascend the EU. Nevertheless the party is not broadly supported even though it gained seats in the last elections to the European Parliament in 2009.

6.2. Reasons behind the protests

There are several reasons why people protest against mosques. The following examples are among the most frequent: a fall in the value of property; fear of increased traffic, loss of quiet, worries of increased crime and violence, fundamentalism, fear of overcrowded places during Fridays and Islamic holidays, fear of the unknown, clash of cultures, defence of women’s rights, incompatibility with European or Christian values, etc.141 However the biggest battles are led over the existence or the height of minarets. The minaret became a symbol of struggle against the Islam, like burqa. Historically, the tower has always been a sign of power and rule over some territory. Hence the Europeans perceive minaret as a symbol of Muslim domination in their territory. Minarets are traditionally used for calls to prayer by muezzin. When the muezzin calls the believers for prayer time he says “God is the greatest. I bear witness that there is no God but God. I bear witness that Muhammad is God’s messenger. Come to prayer. Come to salvation. God is the greatest. There is no God but God”. Many people consider this calling as provocation; on the other hand the Apostles’ Creed made by Christians during the masses or church bells have the same function. On the other hand the cases when the municipalities incline to prohibit church bells142 or the disturbance of the Muslim prayers started to appear.143 Additionally,

141 Allievi, S. (eds.): Mosques in Europe – Why a solution has become a problem, pp. 27. 142 For example some of the Czech towns adopted the generally binding ordinance prohibiting church bells. According to their reasoning the church bells may disturb the peace and are against the public order. The appeals to review the legality of the ordinances are already before the Czech Constitutional Court.

some people interpret the muezzin calling as a call against Christianity or even appeal to fundamentalism. Hence the opposition against minarets with or without muezzins is exceptionally strong in the European countries. In 2009, there was a big debate about mosques and minarets in Switzerland.144 A high-profile referendum about the issue took place. A number of polls were held in various European countries as a result of the events in Switzerland. The majority of them asked whether the people are in favour or against minarets. The opposition is high even in countries, where are not bigger discussions about Muslim community, such as in the Czech Republic (78 percent of Czechs are against minarets) or Slovakia (70 percent of Slovaks are in favour of a ban).145 On the other hand the opposition in the “old EU countries” is not overwhelming as could be seen from polls in Belgium (59 percent of population is against minarets)146 and Italy (46 percent population is against minarets).147 The “new EU countries” mainly support freedom concerning minarets – 54 percent of Finns would allow them,148 49 percent of the Danish,149 44 percent of Swedish150 and 60 percent Austrians (despite the fact that the ban is already in force in two regions there).151 The countries with high number of Muslims are not convinced to ban entirely, as could be seen in the polls in the United Kingdom (only 37 percent152 are favourable to a ban), France (46 percent in favour to a ban),153 Germany (44 percent in favour to a ban)154 and the Netherlands (40 percent in favour to a ban).155 It is obvious that the conflict of Europeans with Islam is real. Mosques are often built without minarets or with attempt to comply with the Western values as a

143 Recently, a man in Austria was sentenced to pay a fine for disturbing Muslim prayers by yodelling. 144 The case of Switzerland is not discussed in the thesis as Switzerland is not a Member State of the EU. See e. g. Johnson, T., K. : Thinking twice about the minaret ban in Switzerland, International Journal for religious Freedom, Vol 2, No 2, 2009, pp. 10 – 13. 145 78% of Czechs, 70% of Slovaks oppose minarets, 18. 12. 2009, available at (http://islamineurope.blogspot.com/2009/12/78-of-czechs-70-of-slovaks-oppose.html). 146 6 Belges sur 10 contre les minarets, Le soir, 8. 12. 2009. 147 Divieto per i minareti Sì dal 46% degli italiani, L’Osservatorio, 8. 12. 2009. 148 Most Finns Would Allow Minarets, YLE, 5. 12. 2009. 149 Flertal støtter forbud mod minareter ved moskeer, Politiken, 4. 12. 2009. 150 Minaret ban favoured by one in four Swedes: poll, The Local, 3. 12. 2009. 151 In Österreich klare Mehrheit gegen Minarett-Verbot, Der Standard, 5. 12. 2009. 152 Poll: Britons Side with Banning Minarets in UK, Europe News, 28. 12. 2009, available at (http://europenews.dk/en/node/28709). 153 Les Français opposés à un référendum sur les minarets et à la consturction de mosquées, Le Monde, 3. 12. 2009. 154 Deutsche gespalten über Minarett-Verbot, Spiegel, 4. 12. 2009. 155 Onderzoek Editie Nl, 40% Nederlanders voor verbod op nieuwe minaretten, Talpafan, 30. 11. 2009.

result. The first eco-mosque in Cambridge156 or women-friendly directory on mosques in the UK might serve as an example of the mosques with western values.157 Before we start to examine the cases there are couple of approaches to the building of mosques which are similar across the European territory. The description of the cases is based on the following typology. The first type is “the averted mosque,” meaning that the opponents make it impossible to start building. The second type is “the desired mosque” in which the local authorities try to mediate the discussion and create atmosphere favourable to the construction. “The invisible mosque” represents the more tolerated than accepted mosque. After the long discussions and conflicts “the discursive mosque” is created. The final type is “the trouble-free mosque” which does not raise a discussion and the builders go forward with their plans unhindered.158 The level of opposition or acceptance of mosques or minarets depends on the conflict type it belongs to.

6.3. The examination of cases according to typology

In 2005, the internationalised conflict in Newham, East London began. As a basis for the international dimension the involvement of an international Islamic movement of faith renewal, the proximity to the landmark 2012 Olympic village, the linkage of the Tablighi Jamaat movement with terrorism and the lack of its ability to respond to media served.159 The permission for planning to build new futuristic and eco-friendly mosque accompanied by social centre expired in 2006. A year later the movement decided to stifle the project and hire public relations specialist in order to adequately handle the press.160 There were two problematic spots criticised by the opposition. First, the movement was charged of the separatism. The local petition with around 2, 500 signatures criticising the only one movement ties appeared.161 The online petition on websites of the Prime Minister in 2007 gained more than 280, 000 signatures.162 That grasped a British National Party (right-wing

156 Cambridge to Built Europe’s First Eco-Mosque, available at (http://www.greenprophet.com/2010/07/eco- mosque-england/). 157 ”Women-friendly” mosques directory launched, The Guardian, 9. 6. 2010. 158 Allievi, S. (eds.): Mosques in Europe – Why a solution has become a problem, pp. 97. 159 Battle for Britain’s largest mosque, BBC News, 16. 3. 2008. 160 A Battle Rages in London Over a Mega-Mosque Plan, The New York Times, 4. 11. 2007. 161 Mega-mosque falls foul of planning laws, Guardian, 5. 11. 2006. 162 E-Petitions Number 10, available at (http://petitions.number10.gov.uk/ScrapMegaMosque/?ref=scrapMegaMosque).

party) by calling for more critical line. The second problem was alleged terrorism link with al- Qaeda. The conviction was based on the reports from the intelligence services which pointed out that some bombers had prayed at mosques owned by the movement.163 However, although the first deadline for completion was Olympics in 2012, the new submission for planning permission has not been given to the local council. Although there was not much interaction between actors and thus it is difficult to sort it into one certain type, it might be considered as the averted mosque” as the construction was not started because of the fear of criticism. The example of the “desired mosque” could be found in agglomeration of Lille, called Roubaix. The city in which Muslims compose 40 percent of the population from 100 000 inhabitants, is famous for the textile industry. The cases started in 1999, when the association representing particularly Moroccans delivered an official demand to the town hall. The issue became a topic in the local elections as the extreme right-wing party protested against the relocation. Through whole debates the desire of the municipality to ratify the lease contract was obvious. The mayor served as a mediator. However after elections the new mayor promoted removing all cultural parts of the mosque project. The friendly approach of the municipality was criticized by the National Front which came up with the campaign against the politics of the town hall towards religious activities.164 In October 2003, the Prefect was asked by the National Front to overrule the municipal ratification of the lease contract. As the Prefect refused to overrule the decision, the party launched the action before the administrative court in March 2004. The administrative court came to the conclusion that the approach of municipality could be interpreted as an indirect support of worship and thus contrary to the existing law. After a couple of discussions the project was remodelled and the construction began.165 Although the rounds of debates in case of Roubaix brought extensive concessions particularly on the Association side, it could be considered as “the desired” type, as the municipality played a crucial role in the mediation process. A successful example of tolerance could be found at the University of Chalmers in Gothenburg. Chalmers is one of the most prestigious technical universities in Sweden and

163 Battle to block massive mosque, Guardian, 24. 9. 2006. 164 Besides too much inclination to support the Islam mosques, the party criticized also the policy towards Buddhist temples and other religious places. 165 Allievi, S. (eds.): Mosques in Europe – Why a solution has become a problem, pp. 165 – 173.

accepts an extensive number of guest students coming from Muslim countries. As the policy of the university towards Muslims is open, the association managed to use the sports hall located within university campus for the prayers. The relationships between Muslim and non-Muslim students is trouble-free and the university does not have to solve broader problems. Chalmers is even literally “the invisible” type.166 The example of “the discursive mosque” occurred in a small spa resort of Bad Vöslau in Lower Austria. In 2006, the construction plans of the new mosque for Turkish community were published by local newspapers. Although the project was previously presented as a cultural centre, the plans clearly showed a mosque with two minarets and dome. The city was granted State’s government expertise which concluded that the building fits in with the surroundings. Nevertheless, the protests against the construction were formed and in the end of 2006, the FPÖ started its intervention. The party distributed leaflets against the domination of Islam in Europe and called for inhabitants’ opposition to the project. The most criticised point was the architectural style of the planned mosque and the possibility of Islam-politicization of the centre. The petition against minarets, signed by almost 2 000 people, was sent to the mayor.167 The protests were accompanied by the founding of societies supporting the project. One of them was the women’s campaign Plurality instead of Oafishness which united women in Bad Vöslau without ethical or religious difference. After the public meeting in 2007, the mayor was authorised as mediator. The process, particularly concerned with the look of the building, took place for 6 month and finally came up with the new architectural plan. The lower minarets were still there but not visible from outside and the dome was also hidden, additionally the plan did not include a call to prayer.168 As a result, the contract between the association and city council was signed. The final compromise was presented as a great victory169 though the FPÖ criticised it and demonstrated against it.170 The protests continued, therefore in September 2007, the governor of Lower Austria Erwin Pröll (ÖVP) commented the issue. He argued against the building of mosques with minarets.171 The issue was brought to the session of Austrian

166 Allievi, S. (eds.): Mosques in Europe – Why a solution has become a problem, pp. 364 – 366. 167 New Mosque Rattles Small Austrian Town, CBN News, 27. 3. 2010. 168 Bad Vöslau und seine Minarette, Die Presse, 17. 1. 2008. 169 Islamisierung durch Politik unterstützt, Neue Freie Zeitung, 27. 3. 2008. 170 FPÖ was invited to the discussions however the party left the mediation process couple of weeks after it started. 171 Moschee in Bad Vöslau eröffnet, available at (http://www.wno.org/newpages/lch56c.html).

Parliament by member of FPÖ as a result of the controversy.172 During lengthy discussions in the Parliament the motion for a resolution to prohibit mosques with minarets on the national level was suggested. The proposal was unsuccessful. In March 2008 the construction of the mosque started and was inaugurated a year and half later. The perfect example of “the trouble-free mosque” is the one, about which the long text simply cannot be written because of lack of controversy. This is obviously a case of Saalfelden, where the former storage depot was rebuild into a mosque with a minaret between 2001 and 2005. As the minaret is only 9 metres high and the mosque is situated in the industrial area of the city, there was no political opposition to the construction. The media did not follow the case because of the lack of the public interest.173 Thus the case remains almost unknown in Austria.

6.4. Conclusions

As could be seen in the examples above, there are several ways in which different nations and communities react toward the construction of mosques. There are examples of the productive debate between local authorities and Muslim society which resulted in the peaceful building of mosque and there are examples of strong opposition against the construction of mosque on the local, national and even international levels. Although there are cases of the calm discussions, the majority of the European cases are marked by the wide debates and strong opposition against the presented plans. Opposition to the construction of mosques with minarets generally starts on the local level and often spills over the national to international level. The media and extreme right-wing parties have a significant position in the process of discussions about the building of the mosque. Additionally, in the debates surrounding mosques, international cooperation between the like-minded political parties could be seen. The key arguments are the same in all EU countries – the threat of terrorism, the fear of parking problems, noise and increased criminality. Moreover the population tends to be more willing to agree to the construction of Islamic cultural centres rather than to the construction of mosques with cultural centres and minarets. The Christian values and the

172 Hausfrau in Kampf gegen Ausländer, Der Standard, 9. 3. 2008. 173 One mosque with a minaret in Salzburg province, available at (http://austrianindependent.com/index.php?id=2721&currPage=&=&print=1).

architectonic shape of the cities is often a strong argument against mosques. Hence the special acts which were adopted in some administrative territorial units. It is understandable that towns are trying to protect their appearance, and consequently the construction of the mosque in Ottoman-style may not fit in the town’s skyline. The issue of mosque is same as the construction of the skyscrapers, although mosques are moreover accused of the link with terrorists. It is clear that the tendencies to regulate the construction of mosques, minarets and possible calling for prayers would rise even on the national level.

7. CRUCIFIXES

Fifty years ago the prohibition of crucifixes or the Ten Commandments would not cross one’s mind. In today’s world the State might be accused of non-neutrality and promotion of one religion over another if there are any religious symbols displayed in public places. The restrictions of the religious symbols connected with the traditional European religion - Christianity are proceeding nowadays. The symbols of “new European” religions are mainly forbidden and the European citizen’s attitude towards Islam could in some cases be labelled as intolerant. The States seem to be automatically adopting acts which restrict the use of headscarves, turbans, skull-cap, and variety of crucifixes in public sphere. The great majority of the European Union Member States do not specifically regulate the presence of religious symbols in the public premises. It is only expressly forbidden in France (except Alsace) only. The French law prohibits wearing religious symbols in public primary and secondary schools.174 On the other side the presence of the crucifixes in the public schools is prescribed in Austria, in some administrative regions of Germany,175 Italy176 and Poland. The religious symbols can be regularly found in Greece, Ireland, Malta, Romania and Spain. This chapter is dedicated solely to the crucifixes and religious icons. Concerning crucifixes, the approach of politicians and public are vigilant and it is difficult to separate them. Due to this fact as was said above I decided to unite the subchapters on the political decisions and public debate. A comparison with judiciary will be provided in the concluding remarks in the end of the chapter.

174 The bill (Loi n°2004-228 du 15 mars 2004 encadrant, en application du principe de laicité, le port de signes ou de tenues maniestant une appartenance religieuse dans les écoles, collèges et lycées publics) was passed on March 2004 and it amended the French Code of Education. 175 Five German regions – Baden-Wurttemberg, Bavaria, Hessen, North Rhine-Westphalia and Saarland adopted laws which prohibit Islamic symbols but specifically permit Christian’s in the public schools. 176 The Kingdom of Piedmont-Sardinia’s Royal Decree no. 4336 of 15 September 1860 (Article 140 requires that each school without fail to be equipped with a crucifix), Royal Decree no. 965 of 30 April 1924 (Article 118 states that each school must have the national flag and each classroom a crucifix and the King’s portrait) and Royal Decree no. 1297 of 26 April 1928 (Article 119 includes crucifixes among the necessary equipment and material in school classrooms). The Italian Ministry of Education issued a bylaw recommending displaying crucifixes in classrooms (Ministero della Pubblica istruzione no. 2666 from October 2007). The Italian Constitutional Court declared that secularism is one of the fundamental principles of the Italian legal system. Secularism, however, does not mean indifference towards religion; it rather means the impartiality and ensuring the religious pluralism (Corte Constituzionale, Sentenza 203, 1989).

7.1. Approach of judicial sphere

The issue of hanging up of cross with or without a dead body of Jesus has been considered by many courts since 1970s. In 1973 the Jewish lawyer came to the court that he should not be obliged to plead his cases under a crucifix. The German Federal Constitutional Court came to the conclusion that hanging up of cross in the court’s room implicates the State’s identification with one religion and violates freedom of religion.177 However the Italian Constitutional Court held the opposite view ten years later.178 Bavaria issued School Regulations for Elementary Schools in 1983. They passed a law that stated all schools were obligated to hang the crucifix in Bavarian elementary schools. One of the parents opposed the regulations because the crucifix traumatizes his daughter. After couple of years of discussion with teachers and principals, the parent took the case to court. His case and consequent appeal were rejected by local court on the basis that the crucifix was a valuable symbol of the general Christian-occidental tradition. The applicant raised the action before the German Federal Constitutional Court stating that the presence of crucifix at schools influences the opinion of children toward the religion. The Constitutional Court finally held that the obligation imposed by decree infringed the Article 4 of the Basic Law and the decree was therefore null and void. Constitutional Court came to the conclusion that the Basic Law “further imposes the duty on State to guarantee room for them (individuals or of religious communities) to operate in which the personality can develop in the philosophical and religious area, and to protect them against attacks or obstruction by adherents of other religious tendencies or competing religious groups”.179 The Constitutional Court dismissed the argument that crucifix is a cultural symbol, stating that it is a religious symbol and therefore the State accepts Christianity as its religion by hanging it in the schools. In this case, the Constitutional Court supported its opinion from 1973, stating that the rights of minorities to religious freedom must be protected against the will of majority. In Poland the Constitutional Court ruled that the ordinance issued by the Minister of Education which prescribed a possibility to display crucifixes in State school classrooms is compatible with the freedom of religion and principle of the separation of Church and State.

177 BverfGE 35, 366 – Kreuz im Gerichtssaal, 17. 7. 1973. 178 Corte Constituzionale, Sentenza no. 203, 1989. He keep his view when he issued a judgement in 2000 stating that he does not see a link between crucifix and any specific belief. Corte Constituzionale, Sentenza no. 508, 2000. 179 BverfGE 93, 1 – Kruzifix, 16. 5. 1995., para C II.

The Constitutional Court stressed that the presence of crucifix is possible but not compulsory.180 In 2006, the issue of displaying of orthodox icons in classrooms was brought against the County Court in Romania. Neither the County Court nor the Court of Appeals found any infringement of the law. However, the applicant complained to the National Council for Combating Discrimination (NCCD). The NCCD recommended that the Ministry of Education and Research adopt a document which would ensure that schools would respect the secular character of the state and that religious symbols would be shown only during religious classes and in special areas intended for religious education.181 The heated public debate was provoked by this recommendation and the case was brought to the Court of Justice in order to withdraw recommendations of the NCCD. The Court dismissed the claim on the basis that “the NCCD recommendation is rooted in the human rights principles and the pluralism of faith”.182 Finally, the case came to the Romanian Supreme Court of Justice which overruled the recommendation stating that it was obviously illegal. The Court stated that the decision to display religious symbols at schools is a matter for the community of teachers, pupils and parents. Hence the displaying religious symbols are not contradictory to the law.183 The Spanish High Court of Justice of Castile and Leon took the same stance as High Court of Cassation and Justice of Romania. The Spanish Court held that if the school receives an explicit request from the parents of a pupil, it should remove the religious symbol.184 Another case in which the court considered a presence of crucifix in public places is from Austria. An atheist father from Lower Austria asked for removal crucifixes from the walls of a state kindergarten which was attended by his son. A father took education authorities to court arguing that kids should grow up in an open-minded world of pluralism. The Austrian Constitutional Court ruled that crucifixes hung up in kindergartens were “no preference in favour of certain religions”.185 The conclusion of the court is interesting as it was issued in the time when the debate about the crucifixes in Europe was vivid because of ruling of the ECtHR. The Austrian Constitutional Court stressed that its decision is not

180 Constitutional Court of Poland (U12/32, 20. 4. 1993). 181 CNDC Decision no. 323/2006, 21. 11. 2006. 182 Horváth, B.: Religious Icons in Romanian Schools: Text and Context, Journal for the Study of Religions and Ideologies, Vol 8, No. 24, Winter 2009, pp. 191. 183 Supreme Court of Romania, no. 2393, 11. 6. 2008. 184 High Court of Justice of Castile and Leon, 3250/2009. 185 The court also stated that religious celebrations at kindergartens are not unconstitutional as children do not have to attend them. VfGH G 287/09.

contradictory to the ruling of the ECtHR as the situation is Austria is different to the one in Italy and other countries. However the court said that the Strasbourg decision may be taken into account in the future. There is only one case by the ECtHR which concerns crucifixes but it is very important case to consider for the comprehension of crucifixes on the European territory.186 One of the applicants was a Finnish mother called Lautsi, who was living in Italy. Her sons attended a State school where a crucifix was fixed to the wall in every classroom. The applicant asked the school’s governors to remove the crucifixes from classrooms. When they denied her demand, she brought proceedings at the Administrative Court. The Court raised the question to the Constitutional Court whether the royal decrees from 1924 and 1928 were constitutional. However, the Constitutional Court held that the question was inadmissible to review of the constitutionality on the basis that the decrees do not have the status of law, but only of a single regulation. The Administrative Court dismissed the application presented by Lautsi because the decrees were still part of the Italian legal framework and the presence of crucifixes in State school did not breach the principle of the secular nature of the State. On the contrary, it actually affirms it.187 The court took the view that the crucifix is a symbol of Christianity and serves as a point of reference for other creeds. Moreover it is a historical and cultural symbol for the Italian people. Nevertheless, Lautsi appealed and the court confirmed its previous decision stating that the cross had become one of the secular values of the Italian Constitution and represented the values of civil life. The applicant took claim to the European Court of Human Rights which found the issue to be a breach of Article 9 of the ECHR and Article 2 of Protocol No. 1 to the ECHR. It stated that the “what may be encouraging for some religious pupils may be emotionally disturbing for pupils of other religions or those who profess no religion [...], particularly if they belonging to religious minorities”.188 According to the opinion of the Court, the State should refrain from “imposing beliefs [...] in places where persons are dependent on it or in places where they are particularly vulnerable”.189 As the schooling of children is a sensitive area, the Court stated that the presence of the crucifix in the classroom would enable children to keep the distance

186 Lautsi v. Italy (2009). The case was referred to the Grand Chamber which held the final judgement in 2011. 187 Consiglio di Stato, Sentenza no. 4575/03-2482/04 from February 15, 2006. 188 Lautsi v. Italy (2009), para 55. 189 Ibidem, para 48.

from religion and freely decide in religious matters. To summarize the ruling of the ECtHR, the presence of the crucifix in the public schools is a breach of the freedom of religion. Two years later, the Grand Chamber of the ECtHR issued a judgement which withdrew the previous decision from 2009. The court stated that the “crucifix on a wall is an essentially passive symbol [...] and it cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities”.190 The Court admitted that there is a great diversity between the States in Europe, particularly in concerning cultural and historical questions and that there is no European consensus on the presence of religious symbols in State schools. The decision whether the crucifixes may be displayed at State schools fell within the margin of appreciation of State.191 “Neutrality requires a pluralist approach on the part of the State, not a secularist one. [...] A preference for secularism over alternative world views [...] is not a neutral option.”192 It is interesting that the Court issued two opposite decisions in a relatively short time; moreover both of them were accepted by the majority of the judges.193 According to some opinions, the Court changed the ruling because of the criticism which followed the first decision. Although the decision of Grand Chamber was broadly welcomed, especially some non-governmental organizations vehemently disagreed.194 The judgement was in favour of Christian cross as an “essentially passive symbol”.195 This brings up the question, how the Court would respond to complaint of Muslim teacher against a Member State which bans headscarves at schools? Would it follow its previous statements or would it not declare a neutrality of religious symbols other than Christian? From the Lautsi case, the effort to leave on the States a margin of appreciation related to religious matters is obvious. The answer for the previous two questions is hence that ECtHR would probably leave the decision on the Member States; otherwise the ruling would likely be opposed by Member States. The Court cannot afford a subsequent situation in which its decision would be overturned.

190 Lautsi v. Italy (2011), para 72. 191 Ibidem, para 68, and 70. 192 Concurring Opinion of Judge Power to the case Lautsi v. Italy (2011). 193 It was accepted unanimously in 2009 and there were only two dissent opinions in 2011. 194 See critique of the European Humanist Federation in Pollock, D.: A critique of the Grand Chamber judgement in the case of Lautsi v. Italy, available at (http://www.humanistfederation.eu/download/277- Critique%20of%20Lautsi%20appeal%20judgement.pdf). The Federation express the sadness on the highly regrettable judgement which she called as a lost opportunity. 195 Lautsi v. Italy (2011), para 72.

7.2. Political decisions and public debate

The Kruzifix case raised a great discussion between Bavarian Catholics, the Protestant majority of Germans and politicians. Both students and the national court were against religious expression; however local courts, regional governments and many politicians disagreed with them.196 The reaction to the Constitutional Court’s decision was immediate. The Christian Social Union party called for disobedience, the Prime Minister of Bavaria said that the core of Bavaria was endangered and some high situated officials197 called for ignorance of the judgement. Why was the reaction so critical? One of the reasons is that after two decades of Christian’s Democrats government, the foundation of German democracy was based on Christian values. Bavarian Catholics interpreted decision as an unauthorized federal intervention and an attempt to limit the religious expression of a community.198 The most influential media, such as Der Spiegel and Die Zeit sparked a fiery debate. A similarity between Nazi regime and marches organized by Bavarian Catholics was drawn by media.199 The situation came to the point that the majority of political leaders opposed the ruling on the ground that it was fundamental attack on German values. Finally the 58 percent of Germans rejected the ruling in pools and many of them took part in broad demonstrations.200 As a result of the discussion, the Bavarian parliament issued a new ordinance which maintained the previous provision about the presence of crucifixes in schools. However, parents were enabled to cite their religious or secular convictions when they challenge the presence of crucifixes. If they do so the school should start a reconciliation process leading to compromise or personalised solution.201

196 Auslander, L.: Bavarian Crucifixes and French Headscarves: Religious Signs and the Postmodern European State, Theory, Culture & Society, Vol 24, No1, March 2007, pp. 284. 197 Even Chancellor Helmut Kohl declared that the values of Christian principles of Germany are endangered. 10.8. 1995: German High Court Crucifix Ruling, available at (http://www.todayinhistory.de/index.php?what=thmanu&manu_id=1545&tag=10&monat=8&year=2002&dayi sset=1&lang=en). 198 Caldwell, P., C.: The Crucifix and German Constitutional Culture, Cultural Anthropology, Vol 11, No 2, May 1996, pp. 259. 199 Ibidem, pp. 261 - 262. 200 Auslander, L.: Bavarian Crucifixes and French Headscarves: Religious Signs and the Postmodern European State, Theory, Culture & Society, Vol 24, No1, March 2007, pp 292 - 293. 201 The solution has to respect religious and ideological convictions of the whole class and take into account the will of the majority (Article 7 of the Bayerische Gesetz über das Erziehungs- und Unterrichtswesen, May 2000).

In 2002 Mario Borghezio, the Italian member of European Parliament (member of the Northern League), submitted a written question to the European Commission if it “intends to propose that the image of the crucifix should be displayed in a prominent position and clearly visible to everybody in all the public offices of the European institutions”.202 In the response to this question, Romano Prodi, on behalf of the European Commission, rejected such an idea straight out. According to his view it is not necessary or desirable to promote crucifixes in such way. The proposal would be “incongruous with the principle of freedom of religion”.203 It could be presumed that there will not be a European law ordering or forbidding displaying crucifixes in public places in the near future. Before issuing the French headscarf ban,204 the government set up a Secularity Commission in 2003. Its goal was to find out whether there was a need for a law which would ban religious symbols. The Muslim organizations such as the Islamic Human Rights Commission opposed this and questioned the intent of the new law. They took part in protests. An opposition force was formed by Jewish and Christian leaders as well.205 The Secularity Commission issued its report in December 2003 and supported the idea of a new law against pupils wearing conspicuous religious signs. Any visible symbols which could be easily noticed by others belong under this scope of the prohibition. The report recommended an allowance to wear discreet symbols of faith such as small crosses, Stars of David, or Fatima’s hands.206 The law was adopted, in spite of the huge demonstration that followed the report in several areas of the France territory. The survey of Agence France-Presse showed that 78 percent of teachers were in favour of law in January 2004. The newspapers, Le Parisien came with the survey showing that 69 percent of the population were for the ban and 29 percent against in February. The survey among French Muslims showed that the 42 percent were for

202 Written question E – 1586/02 by Mario Borghezio (NI) to the Commission. Display of the image of the crucifix in all the public offices of the European institutions. OJ C 028 E, 06/02/2003, p. 0123. 203 Ibidem. 204 Although the act does not mention any particular symbol and all religious symbols are prohibited it was mainly referred as the French headscarf ban. 205 French clerics oppose scarf ban (2003), BBC News, available at (http://news.bbc.co.uk/2/hi/3309885.stm). 206 The report also recommended that the school system should make Yom Kippur and Eid (three-day Muslim holiday that marks the end of Ramadan) into vacation. It also recommended enacting a ban on conspicuous symbols of political affiliation. The French National Assembly did not follow these proposals. Commission de reflexion sur l’application du principe de laïcite dans la Republique – Rapport au president de la Republique, available at (http://lesrapports.ladocumentationfrancaise.fr/BRP/034000725/0000.pdf).

and 53 percent were against.207 As the law was adopted, France became the first Member State of the EU to have such provisions in its legal system. The Romanian case is the only one which considers any other symbols other than Catholic or Muslim symbols. In 2006 the National Council for Combating Discrimination received a letter from scholars who supported the removal of religious symbols from schools. The Secretary of State for Religious Affairs brought a proposal to NCCD as a response to scholars, where he asked for remaining religious symbols in schools. He explained that the orthodox icons are rather symbol of freedom and a powerful national symbol connected to Romania’s spiritual and cultural heritage.208 However, his attempt was unsuccessful. The NCCD’s decision in favour of applicant provoked a great public debate. The government was not the only one who opposed the decision. The Romanian Orthodox Church labelled the decision as an attack on freedom of religion.209 The majority of opinions tended to be in support of the government’s position to leave the final decision to parents and the school rather than State’s regulation. The media wrote panic articles (mostly supporting the idea of presence of icons in schools) and the Civic Media Association started an online petition against the discriminatory decision.210 Around 150 organizations founded the Coalition for the Observance of Religious Faith and it began to send letters to NCCD. The non-governmental organisations sent to the Minister of Education and Research letter, in order to support the NCCD’s recommendation.211 However, the Ministry of Education and Research declared that he would not implement the decision. According to his response, the religious symbols should be removed only if parents, schools and local communities demand such removal. Schools should have the competence to decide whether or not to display religious symbols. As a result of the discussions the Ministry brought a case to the court.

207 The war of the headscarves, The Economist, 5. 2004. 208 Pozitia Secretarului de Stat pentru Culte Adrian Lemeni la audierea din comisia CNCD (2006), available at (http://www.salvati-icoanele.info/2006/11/21/scrisoarea-secretarului-de-stat-pentru-culte-adrian-lemeni- catre-cncd/). 209 The support to the Romanian Orthodox Church was expressed by the other Churches (e.g. the Armenian Orthodox, the Evangelical and the Roman Catholic) as well as Calvinist, Jewish, Lutheran and Muslim communities which belong to minority in Romania. 210 The majority of people (more than 80%) in Romania belong to the Romanian Orthodox Church. Therefore the decision was viewed as a discriminatory measure imposed by minority against majority. 211 Scrisoare catre CNCD re: simboluri religioase (2006), available at (http://romania.indymedia.org/ro/2006/11/1713.shtml).

After the issuing of the judgement by the Romanian Supreme Court of Justice, in which it overruled the decision of the NCCD, discussions finished. The verdict of Austrian Constitutional court was welcomed by conservative and right- wing politicians. The Austrian People’s Party (ÖVP) announced its happiness about the verdict. The conservatives stressed that Lower Austria “was a tolerant province which was aware of its roots and principles at the same time”.212 The president of the Austrian Bishop’s Conference stated that thanks to the judgement the cross still have “as religious and cultural symbol the important place in the public”.213 The decision was supported even by public. The study of public opinion which was made in the time of court’s decision showed that seven out of ten Austrians do not want to remove crosses from classrooms. The support to crucifix in schools is high despite a large number of people have left the Catholic Church.214 Although the Constitutional Court’s ruling was widely supported the result, to which the court came, was surprising. It was expected that the Court would follow the ECtHR in finding the unconstitutionality of the displaying crucifixes in classes. This, however, did not happen. Even though the Court stressed that the situation in Italy cannot be compared to the Austrian, the decision fundamentally contradicts the judgement issued by Senate of the ECtHR. The Austrian case illustrates how severely the reputation and standing of the ECtHR had been undermined. Many articles about the Lautsi case were written, and interestingly there was a huge polemic in Italy about whether the State is really secular or not even before the judgement. The principle of secularity (lacità) belongs to the fundamental principles in Italian constitution. In this context scholars used the term “relative secularity” (lacità relativa) of the State to describe the situation more precisely. There was no provision about displaying crosses at schools in concordat between Italy and Vatican. Additionally, the Catholic Church did not ask for it. However, the Italian government decided to use the crucifix as a cultural symbol at schools.215 As was stated above, the Italian courts tended to proclaim a special relationship between the State and Christianity as a consequence of cultural and historical

212 Conservatives pleased about crucifix verdict, Austrian Independent, 16. 3. 2011. 213 Kreuz bleibt in Kindergärten, OE24.at, 16. 3. 2011. 214 Crucifix ban option leaves most Austrians cross, Austrian Times, 25. 03. 2011. 215 Cimbalo, G. (2003): Laicità dello Stato ed esposizione dei simboli religiosi negli uffici pubblici, available at (http://ecclesiastico.giuri.unibo.it/uploads/file/insegnamento/crocefisso_Bari.pdf), pp. 9.

evolution, and additionally claimed cross as a secular symbol.216 At the same time, they stressed the neutrality of the State towards all religion. Naturally, a balance was difficult to achieve. How is possible to argue that crucifix is secular cultural symbol without rejecting the importance of its religious meaning for believers? On the other hand, does neutrality of the State mean ban of religion in public places (this would obviously be contradictory to the comprehension religious freedom according to Article 9 ECHR) or rather absence of predominance of particular religion on public decision? Would the attitude be same to all religions or only to some? In the context of the Lautsi case, it is interesting how both the governments and non- governmental organizations reacted to the judgement. After issuing the first decision in 2009, the ECtHR almost immediately turned into a target for criticism.217 The Italian Prime Minister, Silvio Berlusconi, strongly opposed the decision and he doubted the “Europe’s common sense”.218 The only Italian party, which supported the ruling, comprised the Radical Party. The Vatican indicated the decision as ideological.219 Only one day after the decision was announced, newspapers220 were overwhelmed by commenting articles. “A Europe that would deny, neglect or abolish her Christian heritage would be a No man’s land” pronounced Italian Bishops’ newspaper’s comment.221 The battle began. Crucifixes were distributed and many

216 Corte Constituzionale, Sentenza no. 14, 1973. Corte Constituzionale, Sentenza no. 925, 1988. Corte Constituzionale, Sentenza no. 440, 1995. Corte di Cassazione, Sentenza no. 439, 2000. Corte Constituzionale, Sentenza no. 508, 2000. 217 It should be noted that some voices to support the decision of the Court rose. In his polemic the Italian scholar Annicchino endorses that there was a violation of Article 9 of the ECHR. In the same time he is opposing the concept of neutrality defined by the Court. According to his opinion this “neutrality” neglects in fact pluralism. Parents should be free to ask for the display of religious symbols at public schools and schools must accept a certain degree of religiosity. Annicchino, P. (2010): Is the glass half empty or half full? Lautsi v Italy before the European Court of Human Rights, available at (http://www.statoechiese.it/images/stories/2010.5/annichino.2_crucifixm.pdf), pp 3. The support also expressed the European Humanist Federation, The European Parliament Platform for Secularism in Politics and Italian secularist’s. For more information about positions see Court Set to Announce Grand Chamber Decision in Lautsi v. Italy on 18 March 2011 (2011), available at (http://beta.religlaw.org/index.php?blurb_id=1209&page_id=19). 218 Crocifisso in aula: Berlusconi, decisione non accettabile per noi Italiani, IrisPress, 4. 11. 2009. 219 Mancini, S.: The Crucifix Rage: Supranational Constitutionalism Bumps Against the Counter-Majoritarian Difficulty, European Constitutional Law Review, Vol 6, No 2, June 2010, pp. 6 - 7. The opposition to the judgment declared also Greek Orthodox Church, although it was not unexpected decision as religious symbols and religious oaths are common in Greek public sphere. As a consequence of the ruling of Strasbourg court the voices to remove religious symbols from public places in Greece might be more intensive and might have more chance to succeed. Greek Orthodox Church opposes EU crucifix ban, Christian Today, 14. 11. 2009. 220 With highly critical comments came L’Osservatore Romano – the official Holy See newspaper. The Italian newspapers La Padania, Libero, Il Tempo, La Repubblica, Corriere della Sera, as well as foreing Le Monde, Guardian criticised the decision. 221 Cardia, C.: Quei giudici che vorrebbero farci tutti più poveri, L’Avvenire, 5. 11. 2009.

local authorities enacted bylaws to compel to display crucifixes in public areas as much as possible (especially in the northern part of Italy which was under control of the Northern League).222 The Lautsi family was oppressed and posters with their faces and word “wanted” were put up.223 The irony of the situation is obvious – there were more crosses in Italy after the judgement than before.224 The majority of citizens (over 60 percent) voted against the total ban of presence of crucifixes at schools. The government opposed the decision of ECtHR though a resolution to the European Parliament. Some members of the National Parliamentary Assembly of the European Court of Human Rights (PACE) issued a written declaration against the “political ruling” and they accused Court for going beyond its jurisdiction. Various suggestions for resolutions in favour or against the ruling were sent to European Parliament. The Alliance of Liberals and Democrats for Europe (ALDE group) called for recognition of the full right of a Member State to display religious symbols on public premises.225 The question was voiced by more than 40 members of European Parliament to the European Commission about displaying religious and cultural symbols in public places and this claim was supported by the principle of subsidiary connected to the issue started. The debate within the European Union structures started. The Italian government, who opposed the judgement from 2009, asked for appeal at Grand Chamber and it was not alone.226 The fact, 33 members of the European Parliament, 10 governments227 and 8 non-governmental organisations228 left to intervene in the written procedure, supporting the idea that the Grand Chamber must revoke the decision. This was

222 Mesco, M.: Italians reject crucifix ruling, Guardian, 4. 11. 2009. 223 The Italian Minister of Defence Ignazio La Russa even said in TV: “we won’t take away the crucifix! [...] The crucifix will remain in all school’s rooms, in all public rooms! They can die! [...] Them and those fake international organization that count for nothing!” Lautsi v. Italy, The European Parliament Platform for Secularism in Politics, available at (http://politicsreligion.eu/news/lautsi-v-italy/). 224 Annicchino, P.: Is the glass half empty or half full? Lautsi v Italy before the European Court of Human Rights, available at (http://www.statoechiese.it/images/stories/2010.5/annichino.2_crucifixm.pdf), pp. 9 225 Written declaration No. 0064/2009, European Parliament, 23. 11. 2009. 226 The Italian government was officially supported by twenty Member States of CoE even by these who have not joined the case as a third party (amicus curiae). These countries were Albania, Austria, Croatia, Hungary, Macedonia (FYROM), Moldova, Poland, Serbia, Slovakia and Ukraine. This means that almost half of the Member States of CoE (21 of 47) opposed the judgement. Puppinck, G.: Lautsi v. Italy – An Alliance against secularism, L’Osservatore Romano, 28. 7. 2010, available at (http://www.eclj.org/pdf/ECLJ-LautsivItaly-crucifix- case-20110315.pdf), pp. 6. 227 The Governments of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta, Monaco, Romania and the Republic of San Marino acted collectively. The oral intervention was done by 8 states (without Monaco and Romania). The summary of their arguments could be found in Lautsi v. Italy (2011), para 47 – 56. 228 Greek Helsinki Monitor, Associazione nazionale del libero Pensiero, European Centre for Law and Justice, Eurojuris, acting collectively; International Committee of Jurists, Interights and Human Rights Watch, acting collectively; Zentralkomitee der deutschen Katholiken: Semaines sociales de France and Associazioni cristiane lavoratori italiani.

a highly important aim which many actors tried to achieve. The famous professor of Law at New York University Joseph Weiler appeared before the Court229 for the governments which intervened collectively in the oral procedure. The 2011 conclusion of the Court was broadly welcomed. The Italian Minister of Foreign Affairs, Franco Frattini, declared that the “popular sentiment in Europe” had won.230 In his Concurring Opinion, Judge Bonello, said that the ECtHR “cannot allow itself to suffer from historical Alzheimer’s. It has no right to disregard the cultural continuum of a nation’s flow through time, nor to ignore what, over the centuries, has served to mould and define the profile of a people. No supranational court has any business substituting its own ethical mock-ups for those qualities that history has imprinted on the national identity”.231 As was said above the intervention was finally successful as the Grand Chamber of the ECtHR took the view that the presence of crucifixes in State schools is not contrary to the ECHR.

7.3. Conclusions

The crucifix debate brought interesting controversies. While the majority of States are reluctant to adopt a law prohibiting the display of religious symbols, the approach of judiciary is a bit different. The German Federal Constitutional Court and the Senate of the European Court of Human Rights issued decisions in support of the idea to remove religious symbols from schools. Their opinion was strongly criticized by public, the politicians and many protests were organized. The debates came to the conclusion that it is legitimate to display crucifix in State schools because it is not in opposition to the principle of secularism. It is clear that both political and public discussion influenced the ruling of the courts. The courts finally came to the conclusion that the “crucifixes may be displayed in the public schools because secularized Christianity represents a structural element of the western constitutional identity, while the wearing of Islamic symbols is either banned or restricted because it represents values and practices that are cast as illiberal and undemocratic”.232 European society is quite tolerant of the Christian religious symbols, as it is used to them. On the other hand, it is sceptical of the

229 See Weiler, J.: Editorial – Lautsi: Crucifix in the Classroom Redux, The European Journal of International Law, Vol 21, No 1, 2010, pp. 1-6. 230 Butt, R.: European Court of Human Rights rules crucifixes are allowed in state schools, Guardian, 18. 3. 2011. 231 Concurring Opinion of Judge Bonello to the case Lautsi v. Italy (2011). 232 Mancini, S.: The Power of Symbols and Symbols as Power: Secularism and Religion as Guarantors of Cultural Convergence, Cardozo Law Review, Vol 30, No 6, June 2009, pp. 2631.

other religious symbols and is more in favour of their prohibition.233 This position is more or less in agreement with the political decisions. While courts are stressing the importance of neutrality to all religions, they leave a space for consideration based on case-to-case approach. One of the comments to the Lautsi decision was right in the point stating that schools without religion symbols “do not help in preparing responsible children for a democratic society. Democracy is not an empty space, but a place where respect for differences must be pursued”.234 As was mentioned earlier, even the German Federal Constitutional Court and the European Court of Human Rights are not strong enough to maintain a decision which would be in clear opposition to the opinion of public and politicians if they want to earn the respect of the masses. Moreover the decision made by Austrian Constitutional Court clearly shows that if the ruling of the ECtHR might be not followed with reference to different situation of each case. Nevertheless, the debate about where and when the crucifix should be displayed is clearly ideological and political issue, representing and underlying tension between religious freedom and imposing on others, rather than legal one on which Europe could find a common solution.

233 Read more about the Islamic religious symbols and the attitude to them in Chapter 8 – Religious headwear. 234 Annicchino, P.: Is the glass half empty or half full? Lautsi v Italy before the European Court of Human Rights, available at (http://www.statoechiese.it/images/stories/2010.5/annichino.2_crucifixm.pdf), pp. 18.

8. RELIGIOUS HEADWEAR

The crucifix could be seen as the foyer of much more provocative debate about wearing an Islamic headscarf in public places. Unlike the crucifix, the headscarves235 are often considered an integral part of the Islamic way of life.236 The same link could be seen with yarmulke for Orthodox Jews or turbans for Orthodox Sikhs.237 The discussions started in Germany but quickly spilled over to France and other countries with Muslim minority. The veiling was traditionally seen by Western society as a measure of oppression against women. However, the reality shows that veiling does not necessarily need to be associated with oppression based on gender. Women veil themselves because of many reasons - the religious and gender ones are only some of them. The other reasons range from ethno- religious identity affirmation, national identity formulation to self-definition to political or cultural concerns.238 In January 2004, the European Council for Fatwas and Research concerning the headscarf issue in France stated that “wearing the headscarf is a devotional commandment and a duty prescribed by the Islamic Law, and not merely a religious or political symbol. [...] This adherence is a commandment that has not been made conditional on any (specific) public place, regardless whether this is a place for religious service or an official or non-official institution”.239 The statement supported an argument that the wearing of headscarf is an important part for Muslim women’s life. There are two main questions which were raised in heated discussions in European states – is the public officer wearing the Islamic headscarf compatible with State’s neutrality240 and secondly could be religious symbols such as headscarf forbidden in public places without infringing the freedom of religion? There is no unified answer to these questions. Additionally the feelings of society may differ with political or judicial decisions.

235 There are many types of Muslim dress for women. Hijab refers to the headscarf which covers women’s hair and neck and provides a clear frame for the face. Jilbab or burqa means complete woman’s loose body- covering including netting over the eyes. Niqab is the face veil that is added to hijab and covers all facial features below the eyes. 236 Gereluk, D.: Should Muslim headscarves be banned in French schools?, Theory and research in Education, Vol 3, No 3, November 2005, pp. 262. 237 Sikhism is a monotheistic religion coming from Punjab (India). The orthodox Sikhs (men only) are prescribed to wear turban. 238 Byng, M. D.: Symbolically Muslim: Media, Hijab, and the West, Critical Sociology, Vol 36, No 1, January 2010, pp. 110. 239 Shadid, W. – Koningsveld van, P. S.: Muslim Dress in Europe: Debates on the Headscarf, Journal of Islamic Studies, Vol 16, No 1, 2005, pp. 36. 240 Even the terminology is not same in all countries while Germany uses term “neutrality”, France “laïcité” and others “secularity”.

There is freedom of religion on one side and on the other the interest such as public order, safety and antiterrorist practices. Furthermore, should there be a common EU position in order to ensure the same treatment for all religions and all citizens in its territory? What about the position of countries which do not have problems with religious minorities as they do not have a great number of immigrants and those where the religious symbols are a problem due to immigrants? Is a common EU position reachable? There are three models across the European Union Member States – prohibitive, selective and tolerant approach. The prohibitive approach is represented by France and some German Lands which adopted bans of all forms of Muslim body covering in public premises. Secondly, selective attitude is applied in Finland, Sweden and the Netherlands, which prohibits only certain kinds of body covering. Lastly, tolerant model followed by Austria or Denmark where the Muslim head or body covering is not restricted at all and must be considered the least restrictive of all the above models.241

8.1. Approach of judicial sphere

One of the first challenges to the ban of headscarves came from Belgium. When some schools applied the internal statues which denied the girls access to the lessons, the courts revoked them. The courts stressed the religious freedom until the public order is threatened by it. The schools have to follow a pluralistic attitude and permit headscarves. Conversely for purpose of keeping order and to quickly identify pupils they have to be bare- headed in school corridors and playgrounds. As a result the headscarf had to be taken off during gymnastics lesson because of hygiene argument.242 Anyway, Belgian courts followed the Dutch classification of public and private schools when the case of six girls attending non-governmental high school was dismissed in 1997. According to the court allowing wearing the headscarves would “imply a form of discrimination against other Muslim girls who had obeyed the bylaw”.243 The courts upheld this opinion many times when any religious symbols where concerned – such as; Catholic crucifixes, stars of David and headscarves.

241 Sauer, B.: Headscarf regimes in Europe: Diversity policies at the intersection of gender, culture and religion, Comparative European Politics, Vol 7, No 1, April 2009, pp. 77. 242 Shadid, W. – Koningsveld van, P. S.: Muslim Dress in Europe: Debates on the Headscarf, Journal of Islamic Studies, Vol 16, No 1, pp. 54. 243 Ibidem, pp. 55.

In the United Kingdom the obligation to wear school uniforms protects the country from bigger controversy about headscarves at schools. Still the issue was considered by the Appellate Committee of the House of Lords in 1983. Islam was not the religion involved in that case. Thanks to the previous colonial empire the United Kingdom has a strong minority of Sikhs. Wearing of turban was in conflict with law which forbids any headwear for pupils wearing school uniform. The school director refused to admit a boy whose father insisted his son would wear turban during classes. The father sued school for racial discrimination. The Appellate Committee came to the conclusion that the law is discriminatory to Sikhs.244 Fifteen years later the conflict between religious freedom and school uniforms was subject of the High Court ruling. A fourteen year old Muslim girl came to the conclusion that her religion prescribed her to wear jilbab. Such type of clothes was not compatible with school uniforms law. Therefore the girl refused to attend school and the family sued school on basis of inflicting freedom of religion ensured by Article 9 of the ECHR.245 The High Court refused the complaint stating that Article 9 of the ECHR was not violated; additionally the restrictions are possible according to Article 9 para 2. According to the opinion of the Court the unified uniforms are justified by the interest to protect rights and freedoms of others.246 The appeal of applicant at Court of Appeal was successful;247 however the Appellate Committee of the House of Lords confirmed the decision of the High Court. The Appellate Committee supported the opinion that the unified uniforms are justified by the protection of religious freedom of others and the social peace within the school.248 In the same year, the employment tribunal found that a Muslim classroom assistant who was suspended from job for wearing a full-face veil had not been discriminated on religious grounds. She was however granted damages for injury to feelings.249 In the Netherlands, the first incident arose in 1989 when Muslim female pupils were exempted from mixed swimming classes and prohibited to wear special clothes during mixed

244 Mandla v. Lee [1983] 2.A.C. 548 (House of Lords). 245 As the United Kingdom does not have a written constitution, neither charter of rights, the Human Rights Act (1998) provided the incorporation of the European Convention on Human Rights into English law. 246 R (on the application of Begum) v Headteacher and Governors of Denbigh High School [2004] EWHC 1389. 247 The Queen on the application of SB v. Head teacher and Governors of Denbigh High School [2005] EWCA Civ 199. 248 R (on the application of Begum) v Head teacher and Governors of Denbigh High School [2006] UKHL 15. 249 Cowell, A.: World Briefing – Europe: Britain: Veiled Muslim Loses Discrimination Case, The New York Times, 20. 10. 2006.

classes in gymnastics. The Court of Justice in Den Bosch ruled250 that claims demanding the constitutional right of religious freedom can be raised against the public institutions only. Hence the private-Christian schools might continue with the prohibitions. The court stated that the Muslim parents have the possibility to put their children to other schools which would accept their special demands. The Dutch Equal Treatment Commission251 came to the conclusion that prohibition of wearing a headscarf by a Muslim teacher, doctors assistant or supermarket employee might be a discriminative. Contrary to this opinion, the Commission approved the prohibition to wear niqab in public schools and universities in 2003. As a response to the liberal approach of the Commission the public debate started. The Commission then ruled that the prohibition of a headscarf would contravene Dutch anti-discrimination law. According to its opinion the ban may be justified only in case where the safety is concerned. Therefore women who wish to wear headscarf in Netherlands and present the case to the Commission will almost always win.252 The principle of secularism (laïcité) is ensured by the French constitution (Article 1). It is a principle of state neutrality regarding different ethnic groups, cultures and religion. According to some comments “France founded its notion of neutrality on equal exclusion”.253 The French approach is evidently the most controversial towards the religious freedom. The secularism according to the French view demands the State neutrality especially in public schools and the religious discrimination is strictly forbidden. Famous motto of the French Revolution “liberté, égalité, fraternité” is still alive. Although being difficult to achieve the desired aim in some cases. It could be presumed that with this approach the French would be maximally tolerant to all religions or strictly forbid them all. Neither of these answers is absolutely true. The French Council of State (Conseil d’Etat) was asked for the advisory opinion to the case of three Muslim girls who were expelled from school because they refused to remove

250 It was a administrative decision by court. 251 Although the Commission’s findings are not binding, parties often voluntarily accept them. 252 Saharso, S.: A Contribution from the Netherlands, European Journal of Women’s Studies, Vol 10, No 1, February 2003, pp. 13. 253 Gereluk, D.: Should Muslim headscarves be banned in French schools?, Theory and research in Education, Vol 3, No 3, November 2005, pp. 264.

the headscarf.254 The Council of State came to the conclusion in 1989 that the secularism means neutrality of the State in the religious matters. Concerning public schools the education must be strictly neutral to any religion and the discrimination based on religious believes is prohibited. If the principle of plurality and the freedom of others are respected and the education is not threatened, then the pupils have a right to express their religious belief. The right to wear symbols might be forbidden if the symbols would amount to constraint, provocation or propaganda or would be a threat for dignity and freedom of others or health and security as well as education.255 The Council of State kept the view in later cases when it reviewed the legality of school decrees forbidding the headscarf at schools’ premises. Between 1992 and 1999 there have been 49 expulsions of Muslim girls from schools considered. The 41 cases of them were revoked by court order. The decision of the Council of State from 1989 “defined the legal status quo with respect to the Muslim veil for the next fifteen years”.256 Before the passing of the proposal to ban full-body veils, the Council of State was asked for its advice. In 2010, the Council in its report warned that total prohibition on full- body veils in public might be found unconstitutional. Additionally it might violate the ECHR; however, the rules requiring the face to be uncovered could be justified in certain situations – for security reasons or fight against fraud and performing some public services. The Council denied using both the principle of “laïcité” and gender equality as a legal basis for a ban. As a result of its findings the Council of State did not find any “legal basis firm enough to justify a general ban on the full veil as such”.257 Nevertheless the Council of State has only advisory voice. Another body which reviewed the new legislation was the Constitutional Council. The Council did not find the unconstitutionality of the act but it changed the text slightly by adding that the ban will not be forced within the places of worship.258 The Council based its arguments on the gender inequality because of burqa.

254 The headmaster of the school permitted to cover head and neck but not the face on the school ground, but they had to take scarf off when they wanted to enter the school. After three months of opposition the girls gave in. 255 Avis No 346893 du 27 novembre 1989, Assemblé générale plénière. 256 Joppke, Ch.: State Neutrality and Islamic Headscarf Laws in France anf Germany, Theory and Society, Vol 36, No 4, August 2007, pp. 320. 257 Report adopted by the Plenary General Assembly of the Conseil d’Etat, 25. 3. 2010, pp. 19. 258 Décision n °2010-613 DC du 7 octobre 2010.

In Germany, the issue began with small cases where female Muslim students were exempted from swimming classes and the prohibition of certain clothing in public schools was forbidden without bigger controversy.259 The Federal Constitutional Court of Germany issued a judgement firstly in 2003. The applicant was a Muslim teacher Ludin from Baden- Wurttemberg. According to the German law public school teachers are employees of State. The candidates for being a teacher have to meet certain conditions which are settled by the government of each Land. One of the conditions made by the school office in Stuttgart was not to wear Muslim veil at school. The applicant refused this condition on the basis of religion and challenged the decision of the Stuttgart School Supervisory Authority (SSA) before the Administrative Courts. As Ludin did not succeed she finally raised an action before the Federal Constitutional Court. The Constitutional Court ruled in favour of teacher saying that “by wearing the hijab the complainant testifies to her membership of the Islamic religious community and her personal identification as a Muslim. In the absence of sufficiently specific statutory justification the decision to treat such conduct as disqualifying her to teach in primary and secondary schools infringed her right of equal access to public office [...] in association with the guarantee of religious freedom [...]”.260 By the decision the Constitutional Court left its loophole for further ruling as it remained up to the legislator whether it would provide the statutory basis for restriction of hijab wearing.261 Indeed in the current case the administrative decision was not taken on the basis of the law. The Constitutional Court avoided the subject skilfully while it pointed out the procedure of the administrative decision. Although the argumentation of the Constitutional Court assumes the obvious sign that the restriction of wearing a Muslim veil in school might be possible.262 It namely states that the hijab is not a religious symbol itself but the link with a person who wears is necessary for consideration. Moreover the important criterion is the comprehension of the veil by the society – whether it connects with religion or additionally with fundamentalism. In that case the restriction of freedom of religion of individual is

259 See German Federal Administrative Court BVerwGE 94,82; BVewG NJW 2002, 3344; Administrative Court of Appeals of Baden-Württemberg NJW 2001, 2899 which stated that teachers are prohibited to wear headscarf while teaching. 260 BverfGE 108, 282 – Kopftuch, para 30. 261 As to the restrictions the legislator “must take due account of the freedom of belief of teacher and pupils, alike of the educational rights of the parents and the duty of the state to stay neutral”, Ibidem, para 62. 262 Bobek, M.: Náboženské symboly ve veřejném prostoru, in: Bobek, M. – Boučková, P. – Kühn, Z. (eds.): Rovnost a diskriminace, pp. 294.

justified by general interest in preserving social peace.263 Immediately after the decision, many Lands passed legislation with aim to ban headscarves in schools. In 2006, the administrative court of Stuttgart found such ban discriminative against Muslim teachers, because Catholic nuns are allowed to teach in their habit.264 The European Court of Human Rights was dealing with the problem of headscarf in few cases only.265 However all of these cases have happened outside the territory of the European Union. Since the ruling might have a significant impact on comprehension of the EU Member States I decided to briefly describe the judgements. The first case was Dahlab v. Switzerland – a Muslim teacher who was fired from her job in basic school because she was wearing hijab. The school justified the decision by the requirement of religious neutrality of education. The ECtHR admitted that the school was right.266 The second case was Leyla Sahin v. Turkey in which university student was forbidden to wear Muslim veil in the university premises. The Court dismissed the complaint stating that the restrictions are justified if their aim is to ensure “peaceful co-existence between students of various faiths and this protecting public order and the belief of others”.267 The appeal at Grand Chamber resulted in the confirmation of the Senate’s decision.268

8.2. Political decisions and public debates

Belgium was one of the first countries which started the debate about headscarf. Although single cases appeared even in the 1970s, the wider discussion started in 1989. In this year Muslim girls demonstrated for permission to wear the headscarf in public schools in both France and Belgium. The proposal to permit headscarf only in the presence of a male teacher was not accepted by the girls as sufficient concession. As a response some internal statutes denying access to lessons with headscarf were adopted. The statutes were opposed by the Belgian Centre for Equal Opportunity and were revoked by courts. However the

263 BverfGE 108, 282 – Kopftuch, para 51 – 53. 264 Sauer, B.: Headscarf regimes in Europe: Diversity policies at the intersection of gender, culture and religion, Comparative European Politics, Vol 7, No 1, April 2009, pp. 82. 265 Except the cases which were found inadmissible by the ECtHR. One of them is famous case before the European Commission on Human Rights Karaduman v. Turkey (1993). Karaduman, the university graduate, could not obtain a provisional certificate which would confirm her qualification, because the university rules required her to submit a photograph with an uncovered head in order to issue the certificate. 266 Dahlab v. Switzerland (2001). 267 Leyla Sahin v. Turkey (2004), para 99. 268 Leyla Sahin v. Turkey (2005).

subject was taken to the Flemish Council in 1993. The leader of the extremist right-wing party Flemish Block proposed to create special Muslim schools (based on the example from the Netherlands) and to ban veil in other public schools. The government responded that the final decision should be left upon the local school authorities as it is fully compatible with the principle of autonomy. The government hence should adopt only general rules (already existing model of school regulations) which would be followed by local authorities. The other issue which was subject to dispute was veiling on photographs for identity cards. In an official letter in 1989, the Minister of the Interior permitted the head-coverings on photographs on the ground of religious convictions. To prevent judicial cases the Minister decided to put certain conditions for photographs – the head-covering can be permitted for religious or medical grounds, “on the condition that the face is left completely visible, which means that the forehead, the cheeks, the eyes and the chin have to be completely uncovered. It is desirable but not obligatory that hair and ears are uncovered as well”.269 Although there were guidelines, Belgian courts ruled over seventy-six lawsuits on this matter in six years. The courts however followed the ministry guidelines and considered the recommendation given by local Muslim leaders. The first conflict regarding headscarves in the Netherlands started in 1985. There were two questions around which the discussions were centred – first, “Does the wearing of headscarves by schoolgirls have a religious basis?”,270 and secondly, “To what extent are school boards obliged to take them into account?”.271 It all began when the two Muslim girls were forbidden to cover their heads in the public primary schools as well as private-Christian primary schools in some small Dutch town. The parents protested against the regulation with the reference to the religious freedom ensured by the constitution. The Lower House of the Parliament asked the local authorities to revoke the prohibition. The second case followed by the decision of the Court of Justice in Den Bosh was supported with the politicians even though they asked for calming the debates in order to not offend the people who want to wear headscarves in public.272 As the clear inequality between schools was permitted in the Netherlands by the court’s decision, the tendency to

269 Shadid, W. – Koningsveld van, P. S.: Muslim Dress in Europe: Debates on the Headscarf, Journal of Islamic Studies, Vol 16, No 1, 2005, pp. 57. 270 Ibidem, pp. 49. 271 Ibidem, pp. 49. 272 Ibidem, pp. 49 – 51.

prohibit headscarves in schools continued. In December 1993, a group of Protestant school in Amsterdam prohibited to wear headscarves based on the arguments of hygiene and to preserve school’s Christian identity. Ten years later, in 2001, the court did not allow a female Muslim law student to wear a headscarf while obtaining practical experience as an assistant clerk in the court’s premises.273 The court justified its decision by the impartiality and neutrality of the judiciary power which cannot be achieved if judges and their assistants would show their religious denomination. Some critics of the decision pointed out the indirect discrimination as it is difficult to enter to certain positions without denying their religion for some people. However the supporters of the decision stressed the essentiality of the principle of the neutrality of judicial power which can justify such approach taken. In the same year the Dutch police organization proposed to allow a headscarf instead of the official hat as a part of the official uniform. The motive behind the proposal was to increase the number of immigrants working for police in order to gain more confidence of the immigrant population. As a response to the liberal approach of the Dutch Equal Treatment Commission the Turkish parents had said they would remove their children from school, if the school continued to employ teacher with headscarf. The school directors warned that trust between teachers, pupils and parents is essential hence they asked the Commission what they have to do. As was stated above, the Commission ruled that the prohibition of a headscarf would contravene Dutch anti-discrimination law. In 2003, Leiden University issued a regulation that “during lectures, tutorials and other classes within University buildings, students and lecturers are not allowed to wear garments that cover the face, nor other attributes that seriously limit non-verbal communication”,274 which was lately incorporated to the Student Charter. The decision was followed by the Association of Dutch Universities which approved the possibility of prohibition of face-covering veils at all Dutch universities. Nevertheless any other Dutch university has followed the example of Leiden. In 2005, the right-wing party Groep Wilders called for a general ban of burqa in public in order to prevent terrorism. In 2007 was the same proposal made by Minister of

273 The court did not issue a judgement it was a decision over the labour contract. 274 Student Charter, Universiteit Leiden, 2010/2011, Article 3.1.4.

Immigration rejected by Dutch cabinet.275 Although certain controversy exists, Dutch society accepts headscarves generally, additionally schools are able to ban veiling only for security reasons. Conversely to Germany and France, the issue whether to accept headscarves at school in United Kingdom remained isolated incidents. In 1990 two Muslim girls with headscarves were not allowed to enter a school in Manchester. The case was solved by local education authority and never resulted into complaint before the court. The authority decided that girls are allowed to wear a headscarf only if it satisfies the colour requirements of school uniform regulations. In the United Kingdom the wearing of the veil was regarded as an expression of religious tolerance. To indicate the marginality of public debate only 18 newspaper articles were issued on the topic since 1989 to 1999.276 Albeit the Muslim headscarves have never been subject to a large debate in the United Kingdom, some interesting hatred articles appeared even in big newspapers such Camden New Journal, Daily Express, Daily Mail, Sunday Telegraph and Tribune couple of years later. The articles were a reaction to the growing number of Muslim population in the United Kingdom as well as terrorist attack of September 11. As a proof of sharp comments the Daily Mail’s columnist wrote that the veil is “an Islamist symbol which plays a role analogous to the use of the swastika by Nazism”.277 The connotations between Islamic fundamentalism and Nazism are popular topic in order to link Islam with illegal activities and therefore justify the ban of Muslim symbols. Nevertheless the campaign in media was not large enough to be able to evoke large discussions.278 The bombings in London in July 2005, the war in Iraq, two cases of Muslim veil before courts from 2006 and the article written by the leader of the House of Commons Jack Straw (from Labour Party) raised the discussion about the veil in the United Kingdom again. The

275 Sauer, B.: Headscarf regimes in Europe: Diversity policies at the intersection of gender, culture and religion, Comparative European Politics, Vol 7, No 1, April 2009, pp. 83. 276 The survey was performed in selected newspapers according to their influence and political orientation – Church Times (Anglican), the Guardian (left), Independent (independent), The Morning Star (Communist), The Times (Conservative) and The Times Education Supplement (specialized). Molokotos Liederman, L.: Religious Diversity in Schools: the Muslim Headscarf Controversy and Beyond, Social Compass, Vol 47, No 3, September 2000, pp. 372. 277 Unfortunately the author, Melanie Philips, already shut article from her websites down. For examples of comments see Williamson, M. – Khiabany, G.: UK: the veil and the politics of racism, Race Class, Vol 52, No 2, October 2010, pp. 87. 278 This is not true for state funding of Islamic schools about which the discussions started in 80s and graduated in the end of Millennium.

leader criticized the full facial veil and asked for removal of it when women279 are talking to him in his office as veil is “such a visible statement of separation and of difference”.280 The article initiated a furious national debate over political correctness and religion. Although Prime Minister Tony Blair was reluctant to join the debate at first he stated that the full veil is “a mark of separation and that is why it makes other people from outside the community feel uncomfortable”.281 Blair did not deny the possibility to veil but he posed the question about how the United Kingdom integrates people properly into its society. Additionally Home Secretary John Reid had cautioned Muslim parents to “watch their children for telltale signs of radicalism”.282 In The Times the Archbishop of Canterbury defended the right to wear religious symbols on the basis that the state is not the source of morality.283 The media pointed the connotation between niqab and the multiculturalism policy which had opened a terrain for terrorism. “Media reports communities implied that multiculturalism had failed to integrate British Muslims into the society where they lived; it had also nurtured an identity that posed a threat to the nation”.284 Surprisingly, there was no result in the form of act which would ban the religious symbols in the public premises in the United Kingdom. In 1989, the French headscarf affair launched. The expulsion of Muslim girls from schools was the first sign of newly reborn dispute. The similar incidents happened in other French cities in which girls were banned from state schools if they did not remove headscarves during classes. Five influential French philosophers published an open letter in weekly magazine supporting the headscarf ban. They appealed to the national memory of the Second World War saying that “secularism was so precious because it was the secular public schools that had sustained the struggle against Hitler and national Socialism during the German Occupation”.285 The local problem escalated to a national controversy. The public reaction ran in favour of the right to practice religion openly. The wife of the president Mitterrand supported veiling and the Minister of Education Lionel Jospin issued a declaration in favour

279 Straw was supported by official of the Muslim Council of Britain as well as some Labour Party officials. 280 Cowell, A.: British Leader Stirs Debate With His Call To Raise Veils, The New York Times, 7. 10. 2006. 281 Cowell, A.: Blair Criticizes Full Islamic Veils as „Mark of Separation”, The New York Times, 18. 10. 2006. 282 Cowell, A.: British Leader Stirs Debate With His Call To Raise Veils, The New York Times, 7. 10. 2006. 283 Werbner, P.: Veiled Interventions in Pure Space: Honour, Shame and Embodied Struggles among Muslims in Britain and France, Theory, Culture & Society, Vol 24, No 2, March 2007, pp. 164. 284 Byng, M. D.: Symbolically Muslim: Media, Hijab, and the West, Critical Sociology, Vol 36, No 1, January 2010, pp. 120. 285 Auslander, L.: Bavarian Crucifixes and French Headscarves: Religious Signs and the Postmodern European State, Theory, Culture & Society, Vol 24, No1, March 2007, pp. 293.

of tolerance.286 Even though the consensus between French politicians against the veil in schools existed in that time (against were Socialist and Communist Party). This attitude was supported by the teachers who considered veil as a troublesome element.287 Even Muslim women agreed that the purpose of school is integration hence the ban would help their kids to adapt to French culture more quickly.288 After the opinion of the Council of State was presented, some cases were referred to local tribunals and girls were threatened on a case- by-case basis. The schools mainly allowed wearing headscarf only if it did not endangered public safety and was compatible with the secular nature of school. The bigger national debate in France started after incident in 1993. In that time four girls were banned from wearing the hijab and their decision was supported by Turkish imam who declared the prevailing of Allah’s law over French law. The imam was deported by government and as a response to both events 2 700 girls started to wear hijab during classes (700 of them newly began to wear hijab). Although the number represented round 1 percent of Muslim girls, the resistance raised a discussion. The Minister of National Education François Bayrou called for internal rules to ban ostentatious signs at schools. As a result 68 girls were suspended from school and number of girls wearing hijab at schools dropped to 600. The resistance endured until the court in Lille and after the Council of State claimed that wearing headscarf is not necessarily ostentatious and proselytizing per se.289 In 1994, the government finally responded with the so-called Bayrou decree. The decision was taken because of the pressure by local school administrators who demanded clearer and more objective guidelines as to when religious symbols might be prohibited. The decree made a borderline between discreet and ostentatious signs. The decree was actually contradictory to the understanding of religious symbols by the Council of State as it stated that ostentatious signs constitute elements of proselytism or of discrimination per se. However, there were no bigger consequences of this clash of opinions.290

286 Auslander, L.: Bavarian Crucifixes and French Headscarves: Religious Signs and the Postmodern European State, Theory, Culture & Society, Vol 24, No1, March 2007, pp. 289. 287 Molokotos Liederman, L.: Religious Diversity in Schools: the Muslim Headscarf Controversy and Beyond, Social Compass, Vol 47, No 3, 2000, 367 – 381. 288 Killian, C. : The Other Side of the Veil: North African Women in France Respond to the Headscarf Affair, Gender & Society, Vol 17, No 4, 2003, pp. 588. 289 Levinson, M.: The Demands of Liberal Education, pp. 126. 290 Joppke, Ch.: State Neutrality and Islamic Headscarf Laws in France and Germany, Theory and Society, Vol 36, No 4, August 2007, pp. 323.

The importance of the discussions about veiling is remarkable from the number of articles issued on the topic. Since 1989 to 1999 over 1100 articles in French newspapers were published (around 80 per cent of them in years 1989 and 1994).291 The liberal approach was once again supported by the High Council for Integration which came with the report about Islam in France in 2000. The report stressed that there are individual and collective liberties of religious worship, even in public, and that the religions are equal. Hence the students have a right to express their religious beliefs within the school institution.292 Nevertheless, the liberal approach of French judicial sphere was under the pressure of public and political opinion. Hence two special commissions whose aim was to investigate the religious freedom were established – the Stasi (Presidental) and Debré (Parliamentary) Commission. The Stasi Commission which issued a report about the French principle of secularity in 2003 was the most important. The report classified the wearing of veil as a matter of “a personal choice or on the contrary a constraint [...]. For those not wearing it, the significance of the Islamic veil stigmatizes [...]. For the school community, too often the wearing of the veil causes suffering and division, even conflict”.293 A clear support to secularity of France was obvious even by president Jacques Chirac. In a speech from 2003 he called for respect of principle of “laïcité” based on the ban of religious symbols in schools. Moreover Chirac rejected the function of the headscarf as a religious symbol only. 294 The Prime Minister Jean-Pierre Raffarin supported the idea of headscarves ban as “they undermine the French republican ideal of freedom and equality”.295 There were generally two articles per day in each of the major French newspapers – Le Monde, Figaro and Libération - between September 2003 and February 2004.296 The proposal of new law was supported across all political parties. The Interior Minister Nicolas Sarkozy was the only stronger opponent, although he advised Muslims to take pictures on identity cards with heads uncovered. Sarkozy expressed his feelings about the law before

291 The survey was performed in selected newspapers according their influence and political orientation - Le Monde (independent), Le Figaro (Conservative), Libération (left), L’Humanité (Communist), La Croix (Catholic) and Le Monde de l’Education (specialized). Molokotos Liederman, L.: Religious Diversity in Schools: the Muslim Headscarf Controversy and Beyond, Social Compass, Vol 47, No 3, September 2000, pp. 371. 292 Haut Conseil a lïntegration : L’Islam dans la Republique, Novembre 2000, pp. 13. 293 Commission de reflexion sur l’application du principe de laïcite dans la Republique – Rapport au president de la Republique, available at (http://lesrapports.ladocumentationfrancaise.fr/BRP/034000725/0000.pdf). 294Campenhausen von, A.: The German Headscarf Debate, Brigham Young University Law Review, Vol 2004, No 2, January 2004, pp. 697. 295 Sciolino, E.: Debate Begins In France On Religion In the Schools, The New York Times, 2. 4. 2004. 296 Joppke, Ch.: State Neutrality and Islamic Headscarf Laws in France and Germany, Theory and Society, Vol 36, No 4, August 2007, pp. 323.

Debré commission stating that “to say that the Republic is in danger, considering these figures, is a stupidity”.297 In the summer 2003 the commission came to the conclusion that a proposal to ban veiling does not reflect a sociological reality of France and has to be seen more as political agitation by a minority. However the Stasi commission came to the different conclusion. As a result of the discussion the parliament introduced the law which prohibited religious symbols in public schools.298 The unanimity of parliament is obvious – after the first reading of the bill 494 deputies of the National Assembly voted in favour, 36 against (mainly Communist deputies) and 31 abstained.299 The declared aim of the law was to preserve secular nature of French society. According to the law is the ban applicable to “ostensible religious signs” such as Muslim headscarves, the Jewish kippa and to large Christian crucifixes. Small symbols such as little crucifixes, David stars and hands of Fatima are allowed. The reaction of the Muslim parents to the situation was oxymoron as if they wish to avoid secular state system; they are enrolling children in Catholic private schools. The reason is simple, “it is a lesser evil: a school that believes in a higher Being, rather than the total exclusion of religion in state schools”,300 – an amazing result of pragmatic considerations. Does the secularity of the State mean equal exclusion of religions? Moreover, could this approach unite the religions in their struggle against State’s authorities? As could be seen from the practise, the answer is yes. If there is a restriction against one religion, it often does not remain in its struggle alone.301 The proof that the debate about religious symbols in France has not ended is the recent law prohibiting the covering face in public places.302 In 2009, the president Nicholas Sarkozy stated that the veils are not welcome in France. He continued to say that the veils

297 Sarkozy pointed out that there is no alarming rise of the number of veiled girls that would have called for an immediate legislative response. The number of conflicts was at a ten-year low in 2003, in the end of the year there were only 20 non-resolved cases, and only four of them resulted in forced exclusion. Moreover only five percent of French schools were affected by veiled students. Joppke, Ch.: State Neutrality and Islamic Headscarf Laws in France and Germany, Theory and Society, Vol 36, No 4, August 2007, pp. 324. 298 Loi n°2004-228 du 15 mars 2004 encadrant, en application du principe de laicité, le port de signes ou de tenues maniestant une appartenance religieuse dans les écoles, collèges et lycées publics was passed on March 2004 and it amended the French Code of Education. 299Joppke, Ch.: State Neutrality and Islamic Headscarf Laws in France and Germany, Theory and Society, Vol 36, No 4, August 2007, pp. 325 - 326. 300 Gereluk, D.: Should Muslim headscarves be banned in French schools?, Theory and research in Education, Vol 3, No 3, November 2005, pp. 264. 301 See Lautsi case or Romanian icons case. 302 Loi n°2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public.

imprison women and “it is contrary to our values of dignity and equality”.303 In 2004 Sarkozy was one of the most influential opponent to the religious symbols ban in the schools and now he changed his position radically. After giving the advice by the Council of State, the proposal was subject to the parliamentary discussions. As the Council has only advisory voice and the ban had strong support from leading parties either on left and right, the proposal was adopted in Senate by 246 votes in favour, 1 against and 100 abstentions (especially from left-wing politicians).304 The majority of French also supported the law, according to the public pools 82 percent approved of a ban.305 Therefore France has become the first European country which passed such legislation. However it should be noted that ban does not specifically refer to Islam, it forbids any face-covering. The aim behind the proposal was to preserve French values and identity. The only punishment for person who would cover his or her face is a fine (about 30 000 euros). The reaction to the act was immediate. Angry demonstrations were held within French territory but also in other European cities. Amnesty International expressly opposed the law saying that it violates freedom of expression and religion. However the French politicians as well as society supported the ban. It is highly possible that the ban would be subject to judicial review before national court and ECtHR in future.306 Italy is another country which considers the ban of burqa in public places. A group of parliament members from the Northern League proposed the ban of burqas in Italy. According to them the prohibition is justified by the security reasons. The attempt is interpreted as a clear reaction to the approval of the same legislation in France. The Equal Opportunities Minister called for a ban because burqa is “symbol of the submission of women”.307 As a result of the discussion several municipal councils have adopted decrees

303 Parliament Moves France Closer to a Ban on Facial Veils, The New York Times, 13. 7. 2010. 304 French senate approves burqa ban, CNN, 14. 9. 2010. 305 Widespread Support for Banning Full Islamic Veil in Western Europe, 2010, Pew Research Center, available at (http://pewresearch.org/pubs/1658/widespread-support-for-banning-full-islamic-veil-western-europe-not-in- america). 306 If the ECtHR follows its previous ruling it would probably overrule the French ban. In case Ahmet Arslan v. Turkey (2010) the ECtHR found a violation of the Article 9 ECHR when Turkish nationals were punished for wearing the distinctive dress of their group in streets of a city. The behaviour of the local authorities was not found justified on the basis of the national security and anti-terrorism legislation. On the other hand the ECtHR might get to untenable position as in Lautsi case if it rules against the ban. Anyway the judgement reasoning would be definitely interesting turning point for the evolution in Europe. 307 Italy’s equal opportunities minister Mara Carfagna calls for burqa ban, The Telegraph, 13. 10. 2009.

banning burqa because of public security. The government report supported the new law; however, the debates are still not ended. The process to ban burqa in other European countries is still not finished on the national level. Many Spanish towns banned wearing of burqas in municipal buildings. The United Kingdom is another country which started to think about the burqa ban in order to defeat threat of terrorism. In 2010 in Belgium has the lower house of parliament almost unanimously (136 votes in favour, 1 against and 2 abstained) adopted the ban of burqa in public places, nevertheless the draft still needs to be approved by the Senate. According to public opinion pools the full ban is supported by majority of Germans, Italians and Spanish.308 The Ludin case gained a political as well as public attention. Even the Land Minister of Education Annette Schavan (Christian Democrat) has intervened on Ludin’s behalf before SSA. In 1998 the government of Baden-Württemberg (the Land into which Stuttgart belongs) decided not to enact law with prohibition on wearing a headscarf while teaching. It is interesting that when German Federal Constitutional Court expressed its opinion that the prohibition of headscarf in schools is theoretically permissible, the great wave of discussions has raised. In defiance of the fact that the lower courts already ruled along this view. The Ludin case had a great political impact – the existing regulations were immediately nullified and a flood of German Land’s laws banning public school teachers from wearing headscarves and sometimes other religious symbols began.309 One of the politicians who spoke against a prohibition on headscarves was former Bavarian Minister of Education Hans Maier (from Christian Democratic Union – CSU). He supported the integration of Muslims in the society and pointed out the fear of consequences the prohibition might have for all religious symbols. One of his arguments was that the most important thing is equality in a secular state. The Federal President of Germany Johannes Rau (from Social Democratic Party of Germany – SPD) also supported such view stressing the equality between religions and beliefs continuing with “one cannot forbid one religious symbol and maintain the status quo

308 Fautré, W.: Full veil, burqa, niqab, hijab ... a challenge to “European” values?, available at (http://neurope.eu/religiousfreedom/full-veil-burqa-niqab-hijab%E2%80%A6-a-challenge-to- %E2%80%98european%E2%80%99-values/). 309 If Land does not declare directly that it prefers not to adopt act on the issue it must amend current law. The anti-veiling legislation passed in Baden-Württemberg, Bavaria, Bremen, Hessen, Lower Saxony, North Rhine- Westphalia and Saarland. There is also the Berlin Law on the Ideological Neutrality of the State, which prohibits all religious symbols (including Christian, Jewish, etc.).

for everything else”.310 The Green Party is the loudest opponent of anti-veiling law stressing the importance of State’s neutrality and impartiality towards all religions. The leader of Free Democratic Party (FDP belongs to centre-right) criticised the approach which results in laicism “a society without values is not what we would want for us. We prefer a society, like ours, which has been shaped by the Occident and by Christian values”.311 The reference to Christianity was mentioned by many actors; the cardinal Ratzinger (currently Pope Benedict XVI) while opposing the prohibition of headscarf, posed the question “are we prepared to accept prohibition of the cross, which is the public symbol of a culture of reconciliation”?312 The answer is no. Although the crucifix as well as headscarf is religious symbol the approach is different. The Lands which are adopting the law which prohibits headscarf are also adopting the law which prescribes the displaying of crucifixes in schools at same time. CDU, conservative of “great coalition” governments passed all laws that contain exemptions for Christian and Jewish symbols. “The left-right schism on this matter, with the right always favouring selective exclusion of the Islam and the left refusing to single out the Islam for exclusion, is affirmed by the case of North Rhine-Westphalia”.313 The North Rhine-Westphalia was the only Land which explicitly rejected anti-veiling legislation in the time of SPD ruling. When the CDU came to the power in 2006 it passed an anti-Islamic headscarf law.314 The approach is not unified as we can see – some struggled for religious tolerance while others mentioned the state’s security and order. Even the “Turkish Community in Germany”, the biggest Islamic organization in Germany, objects the veil in public schools as this attitude is in accordance with the laic orientation of the Turkish State from which the vast majority of German Muslims comes from. A leader of the Turkish community declared that the veiling issue “is an attempt by small, radical groups within the Islamic population to instrumentalize religion for their political-ideological ideas. Their goal is a state based on the laws of the Sharia. Everybody should know that”.315 There is not heated debate about headscarves in Austria. The first case appeared in 2001 when a Muslim girl was denied to enrol in a secondary school. After a public debate the

310 Campenhausen von, A.: The German Headscarf Debate, Brigham Young University Law Review, Vol 2004, No 2, January 2004, pp. 667 – 669. 311 Joppke, Ch.: State Neutrality and Islamic Headscarf Laws in France and Germany, Theory and Society, Vol 36, No 4, August 2007, pp. 327. 312 Ibidem, pp. 331. 313 Ibidem, pp. 332. 314Ibidem, pp. 332. 315 Ibidem, pp. 327.

school lifted the ban. The Muslim pupils were forbidden to wear headscarf during classes in Linz. As in the previous case the dispute was solved at the school level and the girls were allowed to attend classes veiled. As a consequence of these cases the Ministry of Education, Science and Culture issued a decree stressing the protection of the headscarf as a religious symbol under the Austrian and ECHR. All major Austrian parties316 classify the veiling as a “no problem issue”. It results from the understanding of the headscarf as apolitical religious symbol. The only attempt to change the situation was done by Minister of the Interior in 2005 (from ÖVP), who stated she would be in favour of ban. However, after the strong criticism from her colleagues, she had to withdraw the statement.317 Although Austria is not a secular State because particularly the Catholic Church plays an important role in the social areas, including the educational system, the veiling issue remained unproblematic. Austrian government strongly encourages the assimilation of immigrants while respecting the religious and cultural traditions of all beliefs.

8.3. Conclusions

The headscarves debate clearly shows the different approach between the Member States. While the German debate was a product of “top-down” judicialization of politics, which moved forward court-imposed, anticipatory anti-veiling legislation by Lands. Some of them even did not have a single case of a veiled teacher.318 While the bans in France were against students, in Germany the teachers were in the centre of interest. There is another dividing line. In France the debate was about allowing religious signs inside schools while in Germany it is about removing them from schools. There is a clear difference of approaches between crucifixes and veiling. Although the crucifix is considered as secular cultural symbol, the scarf has a potentially proselytising effect which is being taken into account. States are mainly arguing that the ban of veil is required in order to preserve principle of secularism, gender equality and public order and security. “It is noteworthy how little considerations the courts devoted to the fact that the fact that the wearing of a headscarf is a manifestation of the

316 The Christian-conservatives (ÖVP), the Social Democrats (SPÖ) and the Green Party belongs among them. 317 Sauer, B.: Headscarf regimes in Europe: Diversity policies at the intersection of gender, culture and religion, Comparative European Politics, Vol 7, No 1, April 2009, pp. 83 – 84. 318 Joppke, Ch.: State Neutrality and Islamic Headscarf Laws in France and Germany, Theory and Society, Vol 36, No 4, August 2007, pp. 327.

religious freedom of the Muslim women instead focusing on the veil as a symbol”.319 Moreover the courts even did not consider the function of the veil as a protection from the sexual harassment. There was a little consideration by courts that the prohibition of headscarf might be a discrimination based on gender.320 The different opinions between actors can be found mainly in comparison of politicians and public with judiciary. While judges mainly have a liberal approach to the veiling, both politicians and public call for restrictions. Another characteristic of the issue is that the problem rose only in States with high minority of Muslim population. Interestingly the by-laws prohibiting the burqas were adopted in Christian countries such as Italy and Spain. Surprisingly Austria does not have a broader discussion and keeps its attitude to the equality of all religious symbols in the public premises. It would be interesting to know how the debate within Europe will develop in future. The ruling of the European Court of Human Rights concerning burqa bans would determine the another position of the States – either encourage them to adopt new legislation or formulate a coalition as it has happened in crucifix case.

319 Uitz, R.: Freedom of religion in European constitutional and international case law, pp. 129. 320 See Vakulenko, A.: “Islamic Headscarves” and the European Convention On Human Rights: an Intersectional Perspective, Social & Legal Studies, Vol 16, no 2, 2007, pp. 183 – 199.

9. RELIGIOUS OATHS

The refusing to take an oath on grounds of conscience depends mostly on the national law and the approach of the national courts. The issue does not bring the explosive discussions issues such as headscarves, building of mosques and displaying crucifixes incite. However, there are several judgements of courts on this issue in the European territory. Many constitutions expressly deal with religious oaths in the European Union Member States. The German Basic Law provides that the oath for taking a seat in parliament may be done with or without the religious declaration (Article 56). The Greek constitution allows taking an oath according to Member of Parliament’s own religion or creed (Article 59 para 2).321 The religious oath is presumed in Finland as well however those who do not want to swear, may give an affirmation (there is a special decree). The Irish constitution presumes taking oath with reference to God by president (Article 12 para 8), members of Council of State (Article 31 para 4) and judges (Article 34 para 5). Polish Deputies (Article 104 para 2), president (Article 130) as well as members of government (Article 151) can add a sentence “so help me, God” to the oath. This is also possible according to Austrian Constitution (Article 62 para 2). Romanian constitution has a reference to God when president and members of government (Article 82 para 2) take oath. The acts in the United Kingdom requires to take religious oath by many officials (it provides a sentence “so help me, God”) but it may be replaced by affirmation. The majority of States provides a possibility to choose between a religious or secular oath or they do not regulate it at all.

9.1. Approach of judicial sphere

The Belgian Cour de Cassation decided in 1867 that the oath reference containing “so help me God” does not breach the religious freedom. The law was amended in 1974 and the reference to God is no longer there. A Jehovah’s Witnesses member refused to take an oath and raised an action almost three decades after the amendment was made. The local court

321 Interestingly the president is not entitled to this choice. The newly appointed president has to take religious oath even if it is against his belief (Article 33).

decided that as the God is not mentioned in the provision, an objection about religious’ freedom cannot be raised.322 An Evangelical pastor refused to take an oath as a confirmation of his testimony in the criminal proceedings. He challenged the pecuniary punishment. The Federal Constitutional Court of Germany held to the stance that the choice to refuse to take an oath is possible as the expression “I swear” is not necessary to confirm the witness testimony”.323 The issue of religious oaths has come before the ECtHR on many occasions. In 1999, the applicants challenged the provision that they have to take the oath on the Gospels in order to take a seat in San Marino Parliament. The applicants refused to take an oath on the “Holy Gospels” and they were forced to give up their mandate as they did not fulfil the lawfully prescribed condition to publicly profess a particular faith. The ECtHR found this to be a violation of Article 9, “since it required them to swear allegiance to a particular religion on pain of forfeiting their parliamentary seats”.324 According to the decision the interference taken was not necessary in a democratic society. It is quite common to take religious oath in Greece when entering a public profession, during criminal proceedings or when obtaining diploma. All these cases were subject to the court’s review. In 1998 the Greek Council of State allowed for a student to opt-out of taking an oath as a condition to obtain a master’s degree. It stated that he can make a substitute declaration if the oath is against his religion or belief.325 Seven years later, a Greek national was admitted to practise as a lawyer at Athens Court of First Instance, but he had to take an oath before entering the position. He challenged the law that he had to reveal that he was not an Orthodox Christian in order to make a solemn declaration. The ECtHR found this to also be a violation of Article 9 ECHR in 2008.326 The Greek Code of Criminal Procedure states that witness is considered to be of the Orthodox Christian faith. If he is not Orthodox Christian or he does not have a religion, he has to declare it explicitly (Article 218 and 220). He can take an oath according to his religion or if he does not have any, a solemn declaration is sufficient. Four Greek nationals were asked to take the oath by placing their hand on the Bible during criminal proceedings. Each

322 Uitz, R.: Freedom of religion: in European constitutional and international case law, pp. 39. 323 BverfGE 33, 23 – Eidesverweigerung aus Glaubensgründen. 324 Buscarini v. San Marino (1999), para 34. 325 Council of State decision, 1998-R-002. 326 Alexandridis v. Greece (2008).

time they informed the criminal court that they were not Orthodox Christians and they made a solemn declaration instead. The applicants complained that they had been forced to reveal their religion during the proceedings in court. Furthermore it was written in all court’s documents (in some of them they were described as “atheists” or of the “Jewish faith”). The ECtHR concluded that “requiring revealing religious convictions had interfered with the freedom of religion and that the interference was neither justified nor proportionate to the aim pursued”.327 In this judgement, the Court followed the course set by the previous decision. The approach taken by the courts is inconsistent. While the Greek authorities “understand oath requirement as a limitation on free exercise, and thus was willing to concede to certain limitations, [...] the other courts understood a religious oath as an instance of governmental imposition [...] of religious beliefs”,328 all the courts allow the possibility of exceptions for those who do not want to take a religious oath.

9.2. Political decisions and public debate

There is not much evidence about the public debates related taking an oath. The examination of the conflict with conscience resulting from religious oath was performed by Human Rights Committee. Its report concluded that the Irish requirement of religious oath may exclude a part of society from holding certain positions.329 As a reflection the Constitution Review Group proposed in its report from 1996 that the President and members of the Council of State should be permitted to substitute a religious oath to a secular affirmation. It also proposed to uniform non-religious affirmation to all judges or at least permit both options – religious oath as well as secular affirmation. The majority of the Review Group was in favour of the non-religious affirmation based on the argument that the judge’s impartiality should not be put in doubt by a public declaration of personal values.330 The recommendations were not reflected into the law. More than ten years later, in 2009, the Humanist Association of Ireland has launched a poster campaign against religious oath taking by judges, the president and members of the Council of State. The campaign organizers pointed out the same problems as already did United Nations’ Committee in its

327 Dimitriadis v. Greece (2010), para 88. 328 Uitz, R.: Freedom of religion: in European constitutional and international case law, pp. 41. 329 UN. Doc. A/48/1993. 330 Constitution Review Group, Report, 1996, available at (http://www.constitution.ie/reports/crg.pdf).

report. They argued that the current practice is discriminatory to 250 000 Irish citizens who are non-believers. According to their arguments it is impossible to enter into these positions without violating the conscience or through hypocrisy.331 There is not strong feeling in Irish society that the religious oaths should be removed thus the Irish constitution remained unchanged. The Greek socialist government (PASOK) proposed the abolition of a religious oath in courts and the exclusion of religion from identity cards in 2000. The proposal was welcomed by the academics as a good way to prevent discrimination of religious groups. However, the representatives of Greek Orthodox majority332 criticized the decision. The aim of the act was to put Greek legal order in conformity with the ruling of the European Court of Human Rights. The discussion about the identity cards began333 when the Hellenic Data Protection Authority and Prime Minister supported the idea of the proposal. The issue split Greek society into two groups and a media campaign began. People demonstrated and called for a referendum although there was no reference to this issue in constitution. The demonstrations, the call for referendum and Church activities were supported by the largest opposition centre-right party New Democracy. Even thought the government adopted the bill. The opposition submitted an appeal before the Constitutional Court against the removal of religion affiliation from identity cards. Notwithstanding the appeal was rejected. Finally, the Greek president supported the decision of the Constitutional court and the discussion slowly dissolved.334 In 2006 the Greek Communist Party and the Coalition of the Left (Synaspismos) proposed a bill to abolish religious oaths. The New Democracy government opposed the proposal as well as the Greek Orthodox Church. The religious oaths remained unchanged. The ruling of the ECtHR however put a pressure on Greek government to liberate religious policy as much as possible. In October 2009, 34 members of parliament refused to take a religious oath and they took a secular oath instead.335 As Greece lost both of the cases in front of Strasbourg court the Greek Ministry of Justice expressed its intent to remove

331 McGarry, P. (2009): Humanists launch campaign against judicial religious oaths, Irish Times, pp. 6. 332 According to Eurostat special research from 2005 98 percent of people are of the Greek Orthodox faith. 333 Although the religious oath was not the main issue discussed it was a part of the reform proposal. It is therefore interesting to follow the discussion in short. 334 Stavrakakis, Y. (2002): Religion and Populism: Reflections on the “politicised” discourse of the Greek Church, Discussion Paper No. 7, available at (http://eprints.lse.ac.uk/5709/1/StavrakakisPaper7.pdf), pp. 8 – 13. 335 United States Department of State: 2010 Report on International Religious Freedom – Greece, 2010, available at (http://www.unhcr.org/refworld/publisher,USDOS,,GRC,4cf2d098c,0.html).

religious oaths in June 2010. Although the Greek Orthodox Church dropped its opposition the draft was still not adopted by the Parliament.336 In 1997 two Sinn Féin members were elected in House of Commons. As they refused to take the oath or affirmation they lost their seats. They unsuccessfully challenged the decision to the High Court of Justice of Northern Ireland as well as the ECtHR (the Court found it inadmissible). In 2001 the Government expressed that it does not plan to abolish or change the oaths.337 The parliament oaths remained unchanged – there is possibility of religious oath as well as secular affirmation. In the same time there was a proposal to remove religious oaths from English courts which was strictly criticized by the Church leaders. With the support to proposal came the report by the Court of Appeal. According to report, a promise to tell the truth is sufficient.338 The bill was not adopted as it did not have enough support. Another unsuccessful attempt to raise a discussion dates back to 2006.339 The law was in the United Kingdom remained unchanged. Concerning courts it should be noted that witness may choose taking a religious oath or affirmation. While the court magistrates have to take religious oath, the MPs can choose secular affirmation of loyalty to the Crown if they want.

9.3. Conclusions

The issue of taking of religious oath is closely regulated by six constitutions out of the 27 European Union Member States. The majority of the provisions, however, give a possibility to choose religious oath or secular affirmation. The position of the courts can be divided in two categories – Greek and the rest of Europe. As the Greek courts as well as law prefers case-by-case approach of exceptions from the Greek Orthodox majority of people the other European courts claimed a support to protect religious minorities from discrimination. The taking religious oath is not an explosive issue which arouses people to demonstrate and organize petitions. In the majority of the EU countries it is not issue at all. The only bigger discussion was held in Greece, Ireland and the United Kingdom. Although the

336 Religious oaths up for review, Kathimerini, 14. 6. 2010. 337 See the development of oaths in The Parliamentary Oath, 2001, available at (http://www.parliament.uk/documents/commons/lib/research/rp2001/rp01-116.pdf). 338 Verkaik, R.: Church leaders criticise plans to drop court oath, The Independent, 22. 10. 2001. 339JP calls for new courtroom oath (2006), BBC News, available at (http://news.bbc.co.uk/2/hi/uk_news/england/humber/4893264.stm).

most vivid discussion was took place in Greece, this discussion was mainly about removing religion from identity cards and not about the religious oaths.

10. RELIGIOUS HOLIDAYS

Religions have a lot of customs; the majority of them are ordinary and not special at all. The religious celebrations belong among the most beautiful ones. The Christian religious holidays such as Christmas, Easter, Ascension Day, Jewish Yom-Kippur or Chanukah, Muslims Ramadan or others are well known. Families gather together, people visit religious places for special ceremonies and the variety of customs are performed. People are usually trying to take a rest, avoid working during such feasts and devote their time to prayers and contemplations with God. This might be a problem especially in the atheist countries or in the countries where the majority of people is of different religion than the individual who is seeking to celebrate certain holy day. In addition to that there is not only a problem with turning certain days into public holidays but the issue may rise over the proper observance of the day. Certain activities are prohibited during some days or some creeds impose special obligations to the believer every day (such as salat – daily prayers for Muslims). To avoid conflict, the best solution would be to grant as many holidays as religions, but this is not today’s approach. The trend is rather opposite – to get fewer holidays as possible or allow minority faith groups to celebrate their holidays without law regulation. It is not possible to enter all religious holidays into calendar as there would be not many working days left. Only Christian feasts are reflected as national holidays in the European Union. The right of individual on religious freedom is in contrast with public interest and the State’s preference some creeds over another. The European approach inevitably leads to the conflict between employers and their religious non-Christian employees. All religious public holidays in the European Union are based on Christian traditions. Therefore “it is much easier for Christians to uphold their faith without seriously compromising their beliefs than it is for non-Christians”.340 Christmas Day,341 St. Stephen’s Day,342 Epiphany,343 variety of Easter Days (mainly Good Friday), Ascension Day,344 Pentecost

340 Gereluk, D.: Should Muslim headscarves be banned in French schools?, Theory and research in Education, Vol 3, No 3, November 2005, pp. 265. 341 All Member States celebrate Christmas Date, although national holidays are held on December 24 in some countries or on December 25 in the others. Both days are considered national holiday in about half of the Member States. 342 Not all countries celebrating December 26th call it St. Stephen’s Day, the naming varies. This day is not national holidays in Belgium, France, Malta, Portugal and Spain (except Catalonia). 343 Epiphany is celebrated as national holidays in eleven Member States (Austria, Cyprus, Finland, France, Germany, Greece, Italy, Poland, Slovakia, Spain and Sweden).

Monday,345 Assumption Day346 and All Saints Day347 belong among the most common ones. There are no official public holidays connected to the other than Christian religion. The standard full-time working week in the EU begins on Monday and ends on Friday. The majority of retail shops are open for business on Saturday conversely Sunday is considered as a day off. Only in post-socialist countries,348 Ireland,349 the Netherlands, Portugal and Sweden are the shops (especially shopping centres) open on Sundays as well. There are regulations for opening hours or they determine which shops may stay open in some countries such as Denmark, Finland,350 France,351 Germany,352 Italy,353 Spain354 and United Kingdom,355. Indeed special shops for tourists are exempted from the “shop closing law” in many states. Additionally Belgian Constitution ensures a right not to contribute to religious ceremonies and observe the days of rest (Article 20).

344 Ascension Day is officially celebrated in nine Member States (Austria, Belgium, Denmark, Finland, France, Germany, Luxembourg, the Netherlands and Sweden). 345 Pentecost Monday is celebrated as national holidays in ten Member States (Austria, Belgium, Denmark, France, Germany, Greece, Hungary, Luxembourg, the Netherlands and Romania). 346 Assumption Day is celebrated officially in thirteen Member States (Austria, Belgium, France, Germany, Italy, Luxembourg, Lithuania, Malta, Poland, Portugal, Romania, Slovenia and Spain) although the naming differs. 347 All Saints Day is a national holiday in sixteen Member States (Austria, Belgium, Finland, France, Germany, Greece, Hungary, Italy, Lithuania, Luxembourg, Poland, Portugal, Slovakia, Slovenia, Spain and Sweden). 348 These are Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia and Romania. 349 The only exception is for the shops which are involved in alcohol sale. There are certain hours during which they can be open on Sundays although this does not affect shopping centres as they often block access to alcoholic products outside these time periods. 350 All Sundays are official holidays according to Finnish law and the names follow the liturgical calendar. Despite this shops may stay open. The opening hours are determined by the total floor space of a store. 351 There is a law in France which grants small number of specific shops (such as bars, cafes and restaurants or bakeries during the Sunday morning) a right to stay open on Sundays. Additionally the special authorization may be granted to some shops especially in the deserted town centres or in touristic areas. 352 The German Basic Law provides that Sundays and feast days shall be days of rest (Article 140). The law called Ladenschlussgesetz enacted in 1956 granted Sundays special position as free days on which people did not go to work and shops were closed. In 2004 the Federal Constitutional Court (BVerfG, 1 BvR 636/02, 9 June 2004) ruled against unconstitutionality of the law referring to German Basic Law however invited the Federal parliament to reconsider the situation. The parliament transferred the responsibility for opening hours from the federal to state governments in 2006. The previous law is applicable in Bavaria and the Saarland as these states did not adopt its own regulation. 353 The restrictions remained at non touristic areas of the North. 354 Each autonomous community may establish its own Sunday opening calendar. Big stores, bars, restaurants, pharmacies, small family-run stores and bookshops are granted an exception (as well as shops in touristic areas). The others are subject to restriction which normally allows them to open on one Sunday in a month. 355 There is no common position on the UK government level. The British campaign group Keep Sunday Special is trying since 1985 to keep the shops and offices closed on Sundays. It was set up with support from churches, politicians and trade unions. The opening times of stores are determined by the total floor space of a store in England and Wales. In Northern Ireland the number of shops which are staying open on Sundays is increasing. There is no restriction in law in Scotland.

10.1. Approach of judicial sphere

There was no protection of religious rights under the European Community law in 1976. Nonetheless holy days celebrations may collide with a free movement of persons. Hence the ECJ found the jurisdiction there. In Prais v. Council356 the applicant wanted to participate in an employment-related competition at Council. The day of the written exam was unfortunately set on the Jewish holiday. Two days later after the exam took place she demanded to reschedule the date in order to participate in the test. The ECJ stated that the applicant had to notify the institution about the religious holidays and due to that fact she was not able to take part in the competition. The Court ruled that the institutions should try to avoid putting competition’s test on the religious holidays nevertheless “neither the staff regulations nor the fundamental rights already referred to can be considered as imposing on the appointing authority a duty to avoid a conflict with a religious requirement of which the authority has not been informed”.357 Hence the claim was unsuccessful. The courts are mainly reluctant to express their opinion if the days other than Sunday should be entitled as a day of rest. In case X. v. the United Kingdom a Muslim teacher wanted to leave school every Friday for 45 minutes in order to visit local mosque for a prayer. The school managers dismissed him from the occupation as it was not compatible with the duties he was obliged to. The European Commission for Human Rights found no violation of Article 9 of ECHR. The Commission stated that the teacher accepted the conditions of employment contract when he did not express his special religious based demands when signing it. According to the Commission’s opinion “the applicant remained free to resign if and when he found that his teaching obligations conflicted with his religious duties”.358 The same approach took the ECtHR in case Stedman v. the United Kingdom when applicant refused to work on Sundays359 because of her religious (she was evangelical Christian) and family reasons. The Court repeated his opinion that she was free to leave if the contract of

356 Prais v. Council (1976) is the only one purely religious case of the ECJ. 357 Prais v. Council (1976), para 18. 358 X. v. United Kingdom (1981), the law - para 15. 359 The Spanish Constitutional Court came to the same conclusion in when it rejected the complaint of a Seventh - Day Adventist who was dismissed from work when she refused to work on Sundays. Although she suggested alternative arrangements the Court emphasised the secular nature of Sunday in Spain. STC 19/1985, 13 February 1985. The German Federal Constitutional Court added that employer may employ only employees who comply with his expectations and restrict the number of employees to the extent that it determines, BVerfG, 1 BvR 792/03.

employment was against her belief.360 In its judgements the ECtHR took the position that everyone who seeks to manifest his religion or belief will, in a competitive labour market, have a real choice.361 The Jewish religious community raised a claim before the Hungarian Constitutional Court complaining about the fact that the most important Jewish holidays were not official holidays, whereas those of the Christian religion were. The Constitutional Court ruled that the “most important holidays of the Christian religions nowadays have a secularised and general social character. They are special days not because of their religious content but because of economic considerations and because they comply with the expectations of society”.362 Furthermore the Constitutional Court stressed the lack of importance of Jewish holidays on the Hungarian public life and culture. Another case ruled by the ECtHR related to Muslim holiday was Kosteski v. the Former Yugoslav Republic of Macedonia. The applicant was fined for taking a day off without permission in order to celebrate a Muslim religious festival. The Constitutional Court dismissed the case but the applicant complained that the fine is a breach of Article 9 ECHR at Strasburg Court. The Convention does not “protect every act motivated or inspired by a religion or belief”.363 The attendance at a festival was not a manifestation of belief protected by the ECHR. Furthermore absence from work without permission or apparent justification could be subject to a disciplinary penalty.364 As could be seen from the cases, the judicial sphere gives a broad space for States consideration which days should be recognized as national holidays and days of rest.

10.2. Political decisions and public debate

The vivid debate about religious holidays is being performed in the territory of the United States. For the couple of years the questions about Christmas celebrations, decorating public places during religious holidays, days off and analogous are posed by

360 Stedman v. United Kingdom (1997). 361 More recent approach of the ECtHR to the “free to leave” option could be found in case Ivanova v. Bulgaria (2007). 362 Constitutional Court 10/1993, 27. 2. 1993, Saturday Work Case. 363 Kosteski v. the Former Yugoslav Republic of Macedonia (2006), para 37. 364 This was also ruled in case concerning a refusal to attend school parades because of religious reasons. Valsamis v. Greece (1996), para 36 in which the Commission did not found a breach of Article 9 as well.

American society. The similar tendencies in Europe are however missing. Celebrating Christian’s holidays, Christmas’ decoration in supermarkets, public offices and school holidays does not evoke loud discordant opinions within the territory of the European Union. When the European Union introduced the “Working Time Directive”365 the original proposal contained the provision which set Sunday as a weekly day of rest (Article 5). The ECJ annulled the proposal stating that it is up to the Member States to decide which day would be devoted to rest “having regard, in particular, to the diversity of cultural, ethnic and religious factors [...] the fact remains that the Council has failed to explain why Sunday, as a weekly rest day, is more closely connected with the health and safety of workers than any other day of the week”.366 The Member States are free to regulate the day off in their national legislation as stated above. In 2005 the Swedish government came with a proposal to replace national holidays of Monday after Whitsunday367 with National Day. The employers’ organization Almega proposed a move away from Christian based public holidays two years later. The organization stated that it should be the decision of employee to take free day on the basis of his own religious faith. “Why should a Shiite Muslim be free on Epiphany if he [...] wants to be free to celebrate the Day of Ashura”,368 explained the member of Almega. The employees working within the Almega signed a collective wage agreement which followed the proposal.369 The holidays’ situation stayed maintained as no days important for other religions were included into the national holidays’ schedule. The Sunday shopping is not surprisingly unproblematic in the Netherlands – traditionally liberal country. In principle Dutch shops have to close on Sundays but there are many exceptions. These are the shops in tourist areas, with a late-night licence or the local councils can designate 12 Sundays a year on which shops are allowed to open. The liberal

365 Council Directive 93/104/EC. 366 United Kingdom of Great Britain and Northern Ireland v. Council of the European Union (1996), para 37. 367 Whitsunday or Pentecost is Christian feast which is celebrated on the fiftieth day after Easter Sunday. The religious leaders on Christian Council were invited to choose which Christian holiday would be axed. Whit hit (2004), available at (http://www.thelocal.se/156/20040507/). 368 O’Mahony, P. (2007): Religious holidays may become optional, available at (http://www.thelocal.se/6283/20070202/). 369 Landes, D. (2010): Epiphany reignites Sweden’s public holiday debate, available at (http://www.thelocal.se/24212/20100105/).

parties370 oppose to the current law while left-wing parties371 sometimes support religious372 ones which aim is to reduce the number of Sundays. The parliament considers the extension of deregulating act since 1996 almost every year however the attempts are not successful. The society is not unified as well as local councils – some prefers Sunday as a day off others do not. The variety of opinions is mainly based on religious and political affiliation, regional differences and size of the municipalities.373 In 2008 the Polish Members of Parliament came with the proposal to amend the Labour Law and Bill on Holidays. The act came with reestablishment of Epiphany as an official public holiday. This feast was the last religious day which has not been restored since Poland regained its independence in 1991. The amendment was subject to many petitions which gained more than half million signatures. The Civic Platform party intended to cancel the May 1st public holiday in order to keep the total number of free days unchanged. The suggestion was supported by majority of people as they gave preference to Epiphany as opposed to May Day in polls.374 As a result of debates the draft bill was rejected by Parliament in October 2008 and May 1st was not crossed out of calendar. Nevertheless the public debate did not stop. The Poland’s conservative party, the Law and Justice Party led by the Kaczynski twins, launched a campaign to make April 2, the date of Pope John-Paul II’s death, a new public holiday. The new petition for restoration of Epiphany as national holidays with over a million signatures is presented in parliament by the mayor of Lódz the following spring. The new amendment to current law was adopted375 two years later after the first vote and established Epiphany as a national holiday (other holidays proposals were rejected). As compensation the amendment withdrew the obligation to give a day off for holiday falling on a Saturday. The Polish Employers’ Federation asked president not to sign the new law however the attempt was unsuccessful. The Federation announced that it will

370 Like Conservative Liberals (VVD) and Left-wing Liberals (D66) and Green Party. These parties see Sunday shop opening as a good opportunity to stimulate the local economy. 371 Represented by Socialist Party (SP), Social Democrats (PvdA) are motivated by the social background. They support religious parties in order to reach a majority in local councils. 372 The orthodox protestant parties Reformed Political Party (SGP) and Christian Union (CU) belong among the most radical one. The larger Christian Democratic Party (CDA) is less strict. 373 Dijkgraaf, E. - Gradus, R.: Explaining Sunday shop policies, De Economist, Vol 155, No 2, 2004, pp. 211. 374 Poland To Vote on Restoration Of Epiphany Public Holiday (2008), available at (http://www.qppstudio.net/public-holidays-news/2008/poland_001539.htm). 375 The Civic Platform and Polish People’s Party voted for an amendment. The special conditions about floating day off for any holiday that falls on a Saturday was uphold by Law and Justice and the Left parties. The changes for which 370 deputies voted and 44 against (plus one abstention) came into force on January 1, 2011.

challenge the constitutional validity of amendment against the Constitutional Tribunal in January 2011. The debate on religious holidays in Poland is obviously not finished. The European Union keeps declaring its neutrality376 to any religion. The interesting situation happened in the beginning of 2011 when the EU sent more than three millions diaries to schools. The problem was that holy days of Hindu, Jewish, Muslim, Sikh and Chinese festivals were marked in diaries but any mention of Christian feast had been omitted. The fact that the so-called Europe Day on May 9 was pointed out in diaries stresses the curiosity of the situation. Christmas, Easter and other Christian holidays celebrated by the majority of the Europeans were simply missing. German member of the European parliament Martin Kastler “blamed aggressive atheism in the apparatus of the European Union- Commission’ and called it unbearable”.377 He doubted the possibility of mistake but rather assumed clear intent. After the critical reactions378 the EU was forced to apologise.379 The European Commissioner for Health and Consumer Policy John Dalli expressed his regret to this incoherence and he ensured others that he took an immediate action.380 The corrigendum was sent to all teachers who ordered the diaries and the MEPs were ensured in the European Commission’s statement that the situation will not happen again.381

376 One of the given examples might be Declaration no. 11 Treaty of Amsterdam stating that the EU “respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States”. The content was repeated in Article I-52 the Treaty establishing a Constitution for Europe and later in Article 17 the Treaty on the Functioning of the European Union. 377 Hall, A. (2011): EU sends out £4.4m diaries to schools which list Muslim, Chinese and Hindu holidays... but miss out Christmas and Easter, Daily Mail, available at (http://www.dailymail.co.uk/news/article-1346850/EU- diaries-miss-Christmas-Easter-list-Muslim-Chinese-Hindu-holidays.html). 378 The European Commission was subject to written questions by Members of European Parliament mainly whether the act was an omission or intent and how to prevent the same situation in future. The MEPs were from all political groups, namely Mario Borghezio (Italy), Jan Březina (the Czech Republic), Gaston Franco (France), Lucas Hartong (the Netherlands), Othmar Karas (Austria), Ryszard Antoni Legutko (Poland), Jörg Leichtfried (Austria), Thomas Mann (Germany), Nuno Melo (Portugal), Morten Messerschmidt (Denmark), Oreste Rossi (Italy) and Rodi Kratsa-Tsagaropoulou (Greece). 379 On the other hand Hindu appreciated the mentioning of their festivals in the calendar. EC regrets absence of Christmas from Europa Diary (2011), available at (http://www.merinews.com/article/ec-regrets-absence-of- christmas-from-europa-diary/15840128.shtml). 380 Dalli, J.: Europa Diary, available at (http://ec.europa.eu/commission_2010- 2014/dalli/docs/21122010_europa_diary.pdf). 381 Joint answer given by Mr Dalli on behalf of the Commission (February 2011), available at (http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2011-000275&language=DA) and Joint answer given by Mr Dalli on behalf of the Commission (March 2011), available at (http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2011-001821&language=FR).

10.3. Conclusions

The most burning issues connected to freedom of religion are symbols. It is interesting that the religious holidays have a potential to alarm society to take an action as well. The approach of States, courts and public opinion is apparently similar. The courts are reluctant to give a specific ruling which would explicitly define the limits of national holidays. Moreover one could argue that this would be beyond the scope of their jurisdiction. The appreciation is left to the States. As there is not a bigger political or social debate about the firing up from work for taking part in religious festivals or regular rituals the decision about which day should be free of work raises more questions. All religious national holidays in Europe are connected only to Christianity although there were some tendencies to change this situation in certain States. Sunday is the day which is mainly considered a day of rest. With pursuit to EU State’s neutrality it is feasible that the number of Sundays’ restricting laws would decrease in future. It is also probable that some other than Christian connected religious holidays will be tolerated at least by employers as it is not prospective to turn them in national holidays by governments in near future.

11. CONCLUSION

Seneca said that “religion is regarded by the common people as true, by the wise as false and by the rulers as useful”. Although this Great Roman philosopher lived almost 2000 years ago his words are obviously still valid. It is interesting how religion’s influence on politics and public life has not changed over the centuries. Both the history and the current state of affairs show us that religion has a potential to evoke emotional discussions. The solution which would satisfy the majority is mostly impossible to reach. One may wonder why religion in the world of globalism, consumer life, loss of values and nihilism kept its outstanding position. The Catholic Church does not have such power as in medieval age Europe, but to be honest, it still has a great influence on the society and mostly on politics too. However, the links between the Catholic Church and the political decision may not be seen at the first sight. Anyway traditionally Christian Europe which went through dramatic religious past has been exposed to other religions for centuries. The clashes with Judaism and Islam are well known. Today’s European society is tolerant and in the same time hostile to the immigrants. The majority of battles are led over the Christianity and Islam. Interestingly, in the time when the majority of Europeans does not declare the religious affiliation the courts, politicians and groups show off the European Christian values. In the same time they do not want to incorporate and reference to Christianity in the basic documents of the European Union. Is not such an approach ambivalent? One may ask why the heated discussions are always about the Muslim or Christian symbols. Is it a product of the fact that the majority of immigrants come from Muslim countries and the Christianity already cannot be separated from the Europe? Additionally, did the traumatic events of recent years marked by terrorist attacks in New York, Washington, London and Madrid, as well as dramatic internal events such as the assassination of Theo van Gogh, Muhammad cartoons affair, veiling legislation or frequent honour killings raise the anti-toleration moods? Surely, all of these events have a great impact on the debate, but does it really explain it fully? Islam, like other religions, is diverse. The public debates about Muslim symbols such as fear of increased criminality, public order, State’s security, women rights and practical problems connected to the construction of mosques (parking problems, noise and the creation of Muslim ghetto). Do Europeans forget

their own history when accusing Muslims of terrorism? What about IRA and ETA? Do not these organisations have Catholic relationships? Are all Christians therefore terrorists? Although the essay describes the other cases such as Sikhs turbans and Orthodox icons as well, the leading topics are connected with Islam and Christianity. In fact, the whole chapter about the religious buildings is devoted to construction of mosques as it is the most knotty issue nowadays. Migration as a result of globalisation brought a problem of integration. The most visible problem is the integration of Muslims to European society. Islam was for a long time perceived as external to Europe; it is a highly visible, internal social actor in European countries today. European countries are, however, not unified in their approach to the religion. Furthermore, there is often a diversity of understanding between various actors – politicians, judges, inhabitants and groups. Although the majority of States declare themselves to be secular in character, the understanding what is secular may differ. There is France with a ban of religious symbols in public schools and a couple of States, represented by Italy, which prescribes crucifixes in public premises on the other side. Some countries allow Muslims to celebrate Ramadan and wear headscarves, the others not. Some consider Christianity as a secular religion, the other call for ban of Muslim symbols as they are an instrument of Islamization. How to avoid religious collisions and preserve freedom of religion at the same time? The answer is not easy. It is obvious that the European Union is reluctant to adopt any legal document which would unify the States’ approaches towards religious affairs. The European Court of Human Rights tries to settle some regulations concerning freedom or religion, however if the ruling is in conflict with the wish of the States, even the ECtHR is required to change its position. The cases Lautsi and crucifix in Germany clearly show that the judgement incompatible with State’s policy would not be respected. The courts are therefore certainly dependent on the States,382 it is better to change the court’s opinion. Otherwise the courts might not follow the ECtHR case law as was clearly showed by the judgement of the Austrian Constitutional Court. As a result the CoE would not have sufficient means to enforce the ECHR. States are in favour of regulations on a certain level – either national or more favourable on local level. It is probable that the tendencies for bans of Islamic symbols would be on the agenda of political parties in near future. From the examples shown it is obvious

382 I am aware of impartiality and independence of the judiciary, however the financing and especially the enforcement of the judgements by the State’s authorities is meant.

that the support of the anti-immigration rhetoric of extremist right-wing parties will increase in the future. The populist mottos about prohibition of various Islamic symbols attract more and more voters. Therefore it is highly possible that the French example to ban religious symbols would be followed by other countries as it reflects the mood in the European society. The question is whether the States will keep the privileged position of Christianity or treat Christian symbols differently in future as well. As was stated above, the only two courts which decided to treat Christian symbols equally with the Muslim ones had to change their position after being a target of strong criticism.383 Nevertheless, as the Christian values are almost always integrated in the discussions, the special position of Christianity can be expected. The courts mainly stress the importance of neutrality towards any religion but they leave a space for consideration by State’s authorities. Another characteristic is apparent from the court’s ruling – the preference to case-to-case approach. While judges are mainly of a liberal approach, they face the criticism from both politicians and public. Therefore the ruling is often influenced by the actual situation in the State and the parliaments frequently adopt special regulations to avoid undesirable judgements in future. Even though there is not a unified approach of judges to all issues, the courts mainly tend to be liberal as was already mentioned several times. Hence it could be concluded that problems concerning the freedom of religion are more ideological than legal. The courts generally serve as “arbitrators” between the involved parties and they have a potential to start or finish the debates. Although it is evident that the strong influence between public opinion, judiciary and political decisions exists, the process may be different in the States. While normally the process begins in the political sphere, the debate might sometimes be a product of top- down judicial politics (such as headscarves debate in Germany). Additionally, the issues might be the same but the turning point may be different (in one country about removing and in another about allowing religious signs in public places). As it was outlined in the beginning of the thesis, the aim of this paper was to study whether there is a correlation between politics, the judicial world and public opinion. Using

383 It is true that the Federal Constitutional Court of Germany did not change the crucifix judgement, however in the case of headscarves was more cautious in pronouncing the certain preconditions to restrict freedom of religion.

cases it was shown that the correlation clearly exists and that the comprehension of these actors is not unified.

12. BIBLIOGRAPHY

12.1. Table of cases

Table of cases before the Council of Europe institutions

Alexandridis v. Greece, app. no. 19516/06, 2008. Arrowsmith v. the United Kingdom, app. no. 7050/75, 1978. Buscarini and Others v. San Marino, app. no. 24645/94, 1999. Campbell and Cosans v. the United Kingdom, app. no. 7511/76 and 7743/76, 1982. Church of Scientology Moscow v. Russia, app. no. 18147/02, 2007. Church of X v. the United Kingdom, app. no. 3798/68, 1968. D. v. France v. the United Kingdom, app. no 10180/82, 1983. Dahlab v. Switzerland, app. no. 42393/98, 2001. Darby v. Sweden, app. no. 11581/85, 1990. Handyside v. the United Kingdom, app. no. 5493/72, 1976. Hasan and Chaush v. Bulgaria, app. no. 30985/96, 2000. ISKCON and Others v. the United Kingdom, app. no. 20490/92, 1994. Ivanova v. Bulgaria, app. no. 52435/99, 2007. Karaduman v. Turkey, app. no. 44774/98, 1993. Kokkinakis v. Greece, app. no. 14307/88, 1993. Kosteski v. the Former Yugoslav Republic of Macedonia, app. no. 55170/00, 2006. Lautsi v. Italy, app. no. 30814/06, 2009. Lautsi and Others v. Italy, app. no. 30814/06, 2011. Leyla Sahin v. Turkey, app. no. 44774/98, 2004. Leyla Sahin v. Turkey, app. no. 44774/98, 2005. Manoussakis and Others v. Greece, app. no. 18748/91, 1996. Omkarananda and the Divine Light Zentrum v. Switzerland, app. no. 8118/77, 1981. Stedman v the United Kingdom, ap. no. 29107/95, 1997. Thlimmenos v. Greece, app. no. 34369/97, 2000. Valsamis v. Greece, app. no. 21787/93, 1996. X. v. Austria, app. no. 1747/62, 1963. X. and Church of Scientology and 128 its members v. Sweden, app. No. 8282/78, 1980. X. v. the United Kingdom, app. no. 8160/78, 1981. X. v the United Kingdom, app. no. 7215/75, 1982.

Table of cases before the European Court of Justice

Prais v. Council of the European Communities, case 130-75, 1976. Stauder v. Stadt Ulm, case 29-69, 1969. United Kingdom of Great Britain and Northern Ireland v. Council of the European Union, case C- 84/94, 1996.

Table of cases from Germany

BVerfG, 1 BvR 636/02. BVerfG, 1 BvR 792/03. BVerwG, NJW 2002, 3344. BVerwGE 94, 82. NJW 2001, 2899. 1 BvR 308/69, published as BverfGE 35, 366, Kreuz im Gerichtssaal. 1 BvR 1087/91, published as BverfGE 93, 1, Kruzifix. 2 BvR 1436/02, published as BverfGE 108, 282 – 340, Kopftuch. 2 BvR 75/71, published as BverfGE 33, 23, Eidesverweigerung aus Glaubensgründen. 2 BvL 17/99, published as BverfGE 54, 11.

Table of cases from Italy

Corte Constituzionale, Sentenza no. 14, 1973. Corte Constituzionale, Sentenza no. 925, 1988. Corte Constituzionale, Sentenza no. 203, 1989. Corte Constituzionale, Sentenza no. 440, 1995. Corte di Cassazione, Sentenza no. 439, 2000. Corte Constituzionale, Sentenza no. 508, 2000. Consiglio di Stato, Sentenza no. 4575/03-2482/04, 2006.

Table of cases from Romania

CNDC Decision, no. 323/2006, 21. 11. 2006. Supreme Court of Romania, no. 2393, 11. 6. 2008.

Table of cases from Spain

STC 19/1985, 13. 2. 1985. Tribunal Superior de Justicia de Castilla y León, 3250/2009.

Table of cases from the United Kingdom

Mandla v. Lee [1983] 2.A.C. 548. R (on the application of Begum) v Headteacher and Governors of Denbigh High School [2004] EWHC 1389. The Queen on the application of SB v. Head teacher and Governors of Denbigh High School [2005] EWCA Civ 199. R (on the application of Begum) v Head teacher and Governors of Denbigh High School [2006] UKHL 15.

Table of cases from other countries

Council of State decision Greece, 1998-R-002. Constitutional Court of Hungary 10/1993, 27. 2. 1993. Constitutional Court of Poland U12/32, 20. 4. 1993. Le Conseil constitutionnel, Décision n °2010-613 DC du 7 octobre 2010. Verfassungsgerichtshof G 287/09.

12.2. List of legislation

Avis No 346893 du 27 novembre 1989, Assemblé générale plénière. Basic Law for the Federal Republic of Germany. Bayerische Gesetz über das Erziehungs- und Unterrichtswesen, 2000. Canons of the Fourth Lateran Council. Charter of Fundamental Rights of the European Union. Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. Convention on Extradition. Council Directive 93/104/EC. Dignitatis Humanae. Edict of Milan. European Convention on Human Rights.

Framework Convention for the Protection of National Minorities. International Covenant on Civil and Political Rights. Landesgesetzblatt Nr. 10/2008 6. Stück. Lisbon Treaty. Loi n°2004-228 du 15 mars 2004 encadrant, en application du principe de laicité, le port de signes ou de tenues maniestant une appartenance religieuse dans les écoles, collèges et lycées publics. Loi n°2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public. Ministero della Pubblica istruzione no. 2666, 2007. Royal Decree no. 4336, 1860. Royal Decree no. 965, 1924. Royal Decree no. 1297, 1928. Single European Act. Treaty of Amsterdam. Treaty of Nice (2001). Treaty on European Union. UN. Doc. A/48/1993. Universal Declaration of the Human Rights.

12.3. Books

Ahdar, R. - Leigh, I.: Religious Freedom in the Liberal State, Oxford: Oxford University Press, 2005.

Allievi, S. (eds.): Mosques in Europe – Why a solution has become a problem, London: Alliance Publishing Trust, 2010.

Arold, N. L.: The legal culture of the European Court of Human Rights, Leiden: Martinus Nijhoff Publishers, 2007.

Augustine: The City of God, available at (http://www.newadvent.org/fathers/120110.htm).

Bobek, M. - Boučková, P. - Kühn, Z. (eds.): Rovnost a diskriminace, Praha: C.H.Beck 2007.

Cumper, P.: Article 9: Freedom of Religion, in Harris, D. - O’Boyle, M. - Warbrick, C. (eds.): Law of the European Convention on Human Rights, Oxford: Oxford University Press, 2009.

Drulák, P. (eds.): Jak zkoumat politiku: kvalitativní metodologie v politologii a mezinárodních vztazích, Praha: Portál, 2008.

Dworkin, R.: Justice in Robes, Cambridge, Mass: Belknap Press, 2006.

Evans, C.: Freedom of Religion under the European Convention on Human Rights, Oxford: Oxford University Press, 2001.

Gandhi, M. K.: An Autobiography or The Story of My Experiments with Truth, Ahmedabad: Navajivan Publishing House, 1927.

Janis, M. W. – Kay, R. S. – Bradley, A. W.: European Human Rights Law – text and materials, Oxford: Oxford University Press 2008.

Labuschagne, B. C. – Sonnenschmidt, R. W.: Religion, Politics and Law – Philosophical reflections on the sources of normative order in society,Leiden: Brill, 2009.

Levinson, M.: The Demands of Liberal Education, Oxford: Oxford University Press, 1999.

Locke, J.: A Letter Concerning Toleration, available at (http://oregonstate.edu/instruct/phl302/texts/locke/locke2/locke-t/locke_toleration.html).

Locke, J.: An Essay Concerning Human Understanding, available at (http://oregonstate.edu/instruct/phl302/texts/locke/locke1/Essay_contents.html).

Martinková, J.: Náboženské výnimky, Bratislava: Ústav pre vzťahy štátu a cirkvi, 2004.

Masaryk, T. G: Světová revoluce, Praha: Orbis a Čin, 1930.

McNabb, D. E.: Research methods for political science: quantitative and qualitative methods, Armonk: M. E. Sharpe, 2004.

Rousseau, J. J.: The Social Contract, available at (http://www.constitution.org/jjr/socon.htm).

Sekulow, J.: Witnessing their faith. Religious influence on Supreme Court Justices and Their opinions, New York: Rowan and Littlefield, 2005.

Spratek, D.: Evropská ochrana náboženské svobody. Brno: Nakladatelství L. Marek, 2008.

Uitz, R.: Freedom of religion: in European constitutional and international case law, Strasbourg: Council of Europe publishing, 2007.

Tertullian: Apology, available at (http://www.tertullian.org/articles/bindley_apol/bindley_apol.htm).

12.4. Articles

Auslander, L.: Bavarian Crucifixes and French Headscarves: Religious Signs and the Postmodern European State, Theory, Culture & Society, Vol 24, No1, March 2007, pp. 135 - 160.

Berg, T. – Ross, W.: Some Religiously Devout Justices: Historical Notes and Comments, Marquette Law Review, Vol 81, No 2, 1998, pp. 383 – 415.

Boven van, T.: Advances and Obstacles in Building Understanding and Respect between People of Diverse Religions and Beliefs, Human Rights Quarterly, Vol 13, No 4, November 1991, pp. 437 - 452.

Byng, M. D.: Symbolically Muslim: Media, Hijab, and the West, Critical Sociology, Vol 36, No 1, January 2010, pp. 109 - 129.

Caldwell, P., C.: The Crucifix and German Constitutional Culture, Cultural Anthropology, Vol 11, No 2, May 1996, pp. 259 – 273.

Campenhausen von, A.: The German Headscarf Debate, Brigham Young University Law Review, Vol 2004, No 2, January 2004, pp. 665 – 700.

Dijkgraaf, E. - Gradus, R.: Explaining Sunday shop policies, De Economist, Vol 155, No 2, 2004, pp. 207 - 219.

Gereluk, D.: Should Muslim headscarves be banned in French schools?, Theory and research in Education, Vol 3, No 3, November 2005, pp. 259 - 271.

Heinig, H. M.: Law on Churches and Religion in the European Legal Area – Through German Glasses, German Law Journal, Vol 8, No 6, 2007, pp. 563 – 576.

Horváth, B.: Religious Icons in Romanian Schools: Text and Context, Journal for the Study of Religions and Ideologies, Vol 8, No. 24, Winter 2009, pp. 189 - 206.

Johnson, T., K. : Thinking twice about the minaret ban in Switzerland, International Journal for religious Freedom, Vol 2, No 2, 2009, pp. 10 – 13.

Joppke, Ch.: State neutrality and Islamic headscarf laws in France and Germany, Theory and Society, Vol 36, No 4, August 2007, pp. 313 - 342.

Killian, C.: The Other Side of the Veil: North African Women in France Respond to the Headscarf Affair, Gender & Society, Vol 17, No 4, 2003, pp. 567 - 590.

Mancini, S.: The Crucifix Rage: Supranational Constitutionalism Bumps Against the Counter- Majoritarian Difficulty, European Constitutional Law Review, Vol 6, No 2, June 2010, pp. 6 – 27.

Mancini, S.: The Power of Symbols and Symbols as Power: Secularism and Religion as Guarantors of Cultural Convergence, Cardozo Law Review, Vol 30, No 6, June 2009, pp. 2629 - 2668.

Maussen, M.: Policy discourses on mosques in the Netherlands 1980 – 2002: Contested Constructions, Ethical Theory and Moral Practice, Vol 7, No 2, April 2004, pp. 147 – 162.

Molokotos Liederman, L.: Religious Diversity in Schools: the Muslim Headscarf Controversy and Beyond, Social Compass, Vol 47, No 3, September 2000, pp. 367 - 381.

Puppinck, G.: Lautsi v. Italy – An Alliance against secularism, L’Osservatore Romano, 28. 7. 2010, available at (http://www.eclj.org/pdf/ECLJ-LautsivItaly-crucifix-case-20110315.pdf).

Saharso, S.: A Contribution from the Netherlands, European Journal of Women’s Studies, Vol 10, No 1, February 2003, pp. 7 - 27.

Sauer, B.: Headscarf regimes in Europe: Diversity policies at the intersection of gender, culture and religion, Comparative European Politics, Vol 7, No 1, April 2009, pp. 75 - 94.

Shadid, W. – Koningsveld van, P. S.: Muslim Dress in Europe: Debates on the Headscarf, Journal of Islamic Studies, Vol 16, No 1, 2005, pp. 35 - 61.

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Vakulenko, A.: “Islamic Headscarves” and the European Convention On Human Rights: an Intersectional Perspective, Social & Legal Studies, Vol 16, no 2, 2007, pp. 183 – 199.

Vanber, G.: Legislative-Judicial Relations: A Game-Theoretic Approach to Constitutional Review, American Journal of Political Science, Vol 45, No 2, April 2001, pp. 348.

Weiler, J.: Editorial – Lautsi: Crucifix in the Classroom Redux, The European Journal of International Law, Vol 21, No 1, 2010, pp. 1-6.

Werbner, P.: Veiled Interventions in Pure Space: Honour, Shame and Embodied Struggles among Muslims in Britain and France, Theory, Culture & Society, Vol 24, No 2, March 2007, pp. 161 - 186.

Williamson, M. – Khiabany, G.: UK: the veil and the politics of racism, Race Class, Vol 52, No 2, October 2010, pp. 85 - 96.

12.5. Newspapers

A Battle Rages in London Over a Mega-Mosque Plan, The New York Times, 4. 11. 2007.

Anti-Islamic party is playing with fear, Spiegel, 1. 3. 2008.

Bad Vöslau und seine Minarette, Die Presse, 17. 1. 2008.

Battle to block massive mosque, Guardian, 24. 9. 2006.

Battle for Britain’s largest mosque, BBC News, 16. 3. 2008.

Bekeerlingendag en bezoek Essalam moskee Rotterdam, Nieuwsfeit, 7. 1. 2008.

6 Belges sur 10 contre les minarets, Le soir, 8. 12. 2009.

Butt, R.: European Court of Human Rights rules crucifixes are allowed in state schools, Guardian, 18. 3. 2011.

Cardia, C.: Quei giudici che vorrebbero farci tutti più poveri, L’Avvenire, 5. 11. 2009.

Cologne residents rally against anti-Islam conference, Taipei Times, 22. 9. 2008.

Conservatives pleased about crucifix verdict, Austrian Independent, 16. 3. 2011.

Controversial mosque gets go-ahead in Germany, The Telegraph, 29. 8. 2008.

Cowell, A.: Blair Criticizes Full Islamic Veils as „Mark of Separation”, The New York Times, 18. 10. 2006.

Cowell, A.: British Leader Stirs Debate With His Call To Raise Veils, The New York Times, 7. 10. 2006.

Cowell, A.: World Briefing – Europe: Britain: Veiled Muslim Loses Discrimination Case, The New York Times, 20. 10. 2006.

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Crocifisso in aula: Berlusconi, decisione non accettabile per noi Italiani, IrisPress, 4. 11. 2009.

Crucifix ban option leaves most Austrians cross, Austrian Times, 25. 03. 2011.

Demonstrators clash over Swedish mosque, UPI, 11. 4. 2010.

Deutsche gespalten über Minarett-Verbot, Spiegel, 4. 12. 2009.

Die beten und haben ein Messer in der Hose, Die Welt, 20. 10. 2007.

Divieto per i minareti Sì dal 46% degli italiani, L’Osservatorio, 8. 12. 2009.

Erdogan’s One-Man Show, Spiegel, 2. 11. 2008.

Essalam, a symbol of pride, opens its doors in Holland, The National, 23. 12. 2010.

Flertal støtter forbud mod minareter ved moskeer, Politiken, 4. 12. 2009.

French clerics oppose scarf ban (2003), BBC News, available at (http://news.bbc.co.uk/2/hi/3309885.stm).

French senate approves burqa ban, CNN, 14. 9. 2010.

McGarry, P. (2009): Humanists launch campaign against judicial religious oaths, Irish Times.

German far right emerges from shadows to join Cologne campaign against mosque, Guardian, 31. 10. 2010.

Greek Orthodox Church opposes EU crucifix ban, Christian Today, 14. 11. 2009.

Hall, A. (2011): EU sends out £4.4m diaries to schools which list Muslim, Chinese and Hindu holidays... but miss out Christmas and Easter, Daily Mail, available at (http://www.dailymail.co.uk/news/article- 1346850/EU-diaries-miss-Christmas-Easter-list-Muslim-Chinese-Hindu-holidays.html).

Hausfrau in Kampf gegen Ausländer, Der Standard, 9. 3. 2008.

Huge mosque stirs protests in Cologne, The Telegraph, 25. 6. 2007.

In Österreich klare Mehrheit gegen Minarett-Verbot, Der Standard, 5. 12. 2009.

Italy’s equal opportunities minister Mara Carfagna calls for burqa ban, The Telegraph, 13. 10. 2009.

Islamisierung durch Politik unterstützt, Neue Freie Zeitung, 27. 3. 2008.

JP calls for new courtroom oath (2006), BBC News, available at (http://news.bbc.co.uk/2/hi/uk_news/england/humber/4893264.stm).

Kärnten beschließt ein Gesetz gegen Moscheen, Die Presse, 11. 2. 2008.

Kreuz bleibt in Kindergärten, OE24.at, 16. 3. 2011.

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Les Français opposés à un référendum sur les minarets et à la consturction de mosquées, Le Monde, 3. 12. 2009.

Mega-mosque falls foul of planning laws, Guardian, 5. 11. 2006.

Mega Mosque in Rotterdam in Jeopardy, NIS News, 10. 7. 2003

Mesco, M.: Italians reject crucifix ruling, Guardian, 4. 11. 2009.

Minaret ban favoured by one in four Swedes: poll, The Local, 3. 12. 2009.

Most Finns Would Allow Minarets, YLE, 5. 12. 2009.

Mosques are “land grab, not a place of prayer”, says Ralph Giordano, The Times, 6. 12. 2008.

Mosques increasingly not welcome in Europe, USA Today, 17. 7. 2008.

New mosque in Hisingen, Göteborg Daily, 12. 3. 2010.

New Mosque Rattles Small Austrian Town, CBN News, 27. 3. 2010.

New mosque stirs feelings at Hisingen, Göteborg Daily, 12. 4. 2010.

Onderzoek Editie Nl, 40% Nederlanders voor verbod op nieuwe minaretten, Talpafan, 30. 11. 2009.

Onderzoek naar financiering moskeeën, Nieuwsfeit, 27. 11. 2007.

Parliament Moves France Closer to a Ban on Facial Veils, The New York Times, 13. 7. 2010.

Poll: Britons Side with Banning Minarets in UK, Europe News, 28. 12. 2009, available at (http://europenews.dk/en/node/28709).

Religious oaths up for review, Kathimerini, 14. 6. 2010.

Sciolino, E.: Debate Begins In France On Religion In the Schools, The New York Times, 2. 4. 2004.

The war of the headscarves, The Economist, 5. 2. 2004.

Verkaik, R.: Church leaders criticise plans to drop court oath, The Independent, 22. 10. 2001.

”Women-friendly” mosques directory launched, The Guardian, 9. 6. 2010.

12.6. Other sources

Annicchino, P. (2010): Is the glass half empty or half full? Lautsi v Italy before the European Court of Human Rights, available at (http://www.statoechiese.it/images/stories/2010.5/annichino.2_crucifixm.pdf).

Avis No 346893 du 27 novembre 1989, Assemblé générale plénière.

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Cambridge to Built Europe’s First Eco-Mosque, available at (http://www.greenprophet.com/2010/07/eco-mosque-england/).

Cimbalo, G. (2003): Laicità dello Stato ed esposizione dei simboli religiosi negli uffici pubblici, available at (http://ecclesiastico.giuri.unibo.it/uploads/file/insegnamento/crocefisso_Bari.pdf).

Commission de reflexion sur l’application du principe de laïcite dans la Republique – Rapport au president de la Republique, available at (http://lesrapports.ladocumentationfrancaise.fr/BRP/034000725/0000.pdf).

Constitution Review Group, Report, 1996, available at (http://www.constitution.ie/reports/crg.pdf).

Court Set to Announce Grand Chamber Decision in Lautsi v. Italy on 18 March 2011 (2011), available at (http://beta.religlaw.org/index.php?blurb_id=1209&page_id=19).

78% of Czechs, 70% of Slovaks oppose minarets, 18. 12. 2009, available at (http://islamineurope.blogspot.com/2009/12/78-of-czechs-70-of-slovaks-oppose.html).

Dalli, J.: Europa Diary, available at (http://ec.europa.eu/commission_2010- 2014/dalli/docs/21122010_europa_diary.pdf).

E-Petitions Number 10, available at (http://petitions.number10.gov.uk/ScrapMegaMosque/?ref=scrapMegaMosque).

EC regrets absence of Christmas from Europa Diary (2011), available at (http://www.merinews.com/article/ec-regrets-absence-of-christmas-from-europa- diary/15840128.shtml).

Eurostat Data in Focus 1/2011 – Population and social conditions, available at (http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-QA-11-001/EN/KS-QA-11-001-EN.PDF).

Fautré, W.: Full veil, burqa, niqab, hijab ... a challenge to “European” values?, available at (http://neurope.eu/religiousfreedom/full-veil-burqa-niqab-hijab%E2%80%A6-a-challenge-to- %E2%80%98european%E2%80%99-values/).

Fekete, L. (1995): Issues in the French presidential elections, available at (http://www.irr.org.uk/europebulletin/france/extreme_right_politics/1995/ak000006.html).

FPÖ gegen „Überfremdung“ oder: Wie Nazi-Diktion salonfähig wird, available at (http://www.doew.at/projekte/rechts/chronik/1999_09/stop1.html).

10.8. 1995: German High Court Crucifix Ruling, available at (http://www.todayinhistory.de/index.php?what=thmanu&manu_id=1545&tag=10&monat=8&year= 2002&dayisset=1&lang=en).

Haut Conseil a lïntegration : L’Islam dans la Republique, Novembre 2000.

Joint answer given by Mr Dalli on behalf of the Commission (February 2011), available at (http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2011-000275&language=DA).

Joint answer given by Mr Dalli on behalf of the Commission (March 2011), available at (http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2011-001821&language=FR).

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Landes, D. (2010): Epiphany reignites Sweden’s public holiday debate, available at (http://www.thelocal.se/24212/20100105/).

Lautsi v. Italy, The European Parliament Platform for Secularism in Politics, available at (http://politicsreligion.eu/news/lautsi-v-italy/).

O’Mahony, P. (2007): Religious holidays may become optional, available at (http://www.thelocal.se/6283/20070202/).

Minarets in Austria also pose problems, 12. 10. 2009, available at (http://www.infosud.org/spip/style/squelettes/squelettes/IMG/pdf/images/images2/spip.php?articl e6725).

Moschee in Bad Vöslau eröffnet, available at (http://www.wno.org/newpages/lch56c.html).

Muslims in Europe: Country guide, BBC News, 23. 12. 2005, available at (http://news.bbc.co.uk/2/hi/europe/4385768.stm).

One mosque with a minaret in Salzburg province, available at (http://austrianindependent.com/index.php?id=2721&currPage=&=&print=1).

Oxford Dictionaries, available at (http://www.oxforddictionaries.com/view/entry/m_en_gb0468750#m_en_gb0468750).

The Parliamentary Oath, 2001, available at (http://www.parliament.uk/documents/commons/lib/research/rp2001/rp01-116.pdf).

Poland To Vote on Restoration Of Epiphany Public Holiday (2008), available at (http://www.qppstudio.net/public-holidays-news/2008/poland_001539.htm).

Pollock, D.: A critique of the Grand Chamber judgement in the case of Lautsi v. Italy, available at (http://www.humanistfederation.eu/download/277- Critique%20of%20Lautsi%20appeal%20judgement.pdf).

Pozitia Secretarului de Stat pentru Culte Adrian Lemeni la audierea din comisia CNCD (2006), available at (http://www.salvati-icoanele.info/2006/11/21/scrisoarea-secretarului-de-stat-pentru-culte- adrian-lemeni-catre-cncd/).

Report adopted by the Plenary General Assembly of the Conseil d’Etat, 25. 3. 2010.

Scrisoare catre CNCD re: simboluri religioase (2006), available at (http://romania.indymedia.org/ro/2006/11/1713.shtml).

Special Eurobarometer 225 – Social values, Science and Technology (2005), available at (http://ec.europa.eu/public_opinion/archives/ebs/ebs_225_report_en.pdf ).

Stavrakakis, Y. (2002): Religion and Populism: Reflections on the “politicised” discourse of the Greek Church, Discussion Paper No. 7, on-line text (http://eprints.lse.ac.uk/5709/1/StavrakakisPaper7.pdf).

Student Charter, Universiteit Leiden, 2010/2011.

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Text of the explanations relating to the complete text of the Charter, available at (http://www.europarl.europa.eu/charter/pdf/04473_en.pdf).

United States Department of State: 2010 Report on International Religious Freedom – Greece, 2010, available at (http://www.unhcr.org/refworld/publisher,USDOS,,GRC,4cf2d098c,0.html).

Wertheimer Appell, available at (http://www.moschee- schluechtern.de/texte/wertheimer_appell.pdf).

Widespread Support for Banning Full Islamic Veil in Western Europe, 2010, Pew Research Center, available at (http://pewresearch.org/pubs/1658/widespread-support-for-banning-full-islamic-veil- western-europe-not-in-america).

Whit hit (2004), available at (http://www.thelocal.se/156/20040507/).

Written declaration No. 0064/2009, European Parliament, 23. 11. 2009.

Written question E – 1586/02 by Mario Borghezio to the Commission, OJ C 028 E, 06/02/2003.

All sources are checked to May 19, 2011.

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