engleski

Religious symbols in education institutions: Jurisprudence of the European Court of Human Rights

The issue of religious symbols in the educational institutions has given rise to widespread debate on the scope of freedom of religion and the relationship between the state and religion in various countries around the world. Two types of cases have been litigated before the European Court of Human Rights: those concerning the wearing of ‘the Islamic headscarf’ in schools and universities by pupils/students and teachers, and those concerning the presence of crucifix in the wall of the school classroom. These cases have raised the issue of balancing between different rights of different groups and state interests and the role of human rights institutions in monitoring the state’s balancing of these rights and interests. Following rights are engaged in the debate on religious symbols in educational institutions: freedom of religion of individual pupils, students and teachers– including the right to believe and right not to believe ; rights of parents to educate their children according to their philosophical and religious beliefs ; and state’s interests in promoting certain values which they may see as indispensable for its public order. These rights and interests may all be in conflict. Different pupils and students may have different belief systems, as may the parents so the question becomes how to safeguard the rights of all equally. In addition, rights of parents and their children may be in conflict, which may be further complicated by the fact that children cannot coherently express their views in view of their age. Finally, the state may have different interests – from promoting tolerance and pluralism, gender equality to secularism and/or neutrality, national identity and security and these interests/values might be in conflict. In this article, I shall analyse the Court’s jurisprudence on religious symbols in educational institutions, namely cases concerning wearing of Islamic headscarf in Turkey, France and Switzerland and a case concerning presence of the crucifix in the schools in Italy. After briefly summarising the cases concerning ‘Islamic headscarf’, I shall focus in particular on the Court’s interpretation of the principles of neutrality/secularism and of gender equality which the relevant governments claimed were served by prohibitions of wearing the Islamic headscarf imposed on different groups of people in different context. I shall criticise the Court’s deference to the state and its understanding of the principles as too simplistic and paternalistic. I shall then proceed to analysing the case concerning the crucifix, criticising again the Court’s approach of deferring to the state’s understanding of the symbol, its impact and compatibility with the requirements of the principles of neutrality and pluralism in education. In conclusion, acknowledging that it is not the Court’s role to a particular form of relationship between the state and the church, I shall argue that it should still supervise how states respect rights of a concrete individual, since religious liberty is not guaranteed to promote certain creeds or to reap the positive consequences of religion as such for society or the state, but because of the concern for the concrete individuals who (do not) believe and the categorical respect for their personalities. The concern for individual would require the state to respect the following requirements: be autonomous from the religion and vice versa, respect individual religious and plurality. If such an approach had been applied, the applicants might have been successful.

manifestation of religion; neutrality; gender equality; Islamic headscarf; crucifix

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