In a majority ruling of the European Court of Human Rights (the “ECtHR”) on Thursday 16 May, the Court found that the applicants’ complaint under Article 9 of the European Convention of Human Rights (the “Convention”) was manifestly ill-founded. The case concerned a ban on the wearing of visible symbols of belief in Flemish schools (it did not solely target the Islamic veil), and whether this was an infringement of students’ freedom of thought, conscience and religion.
Under Article 24 §1(3) of the Belgian Constitution, there is a requirement for neutrality in education, with a reference in particular to philosophical, ideological or religious convictions of both pupils and parents. In aid of enhancing their commitments to neutrality, the Education Council of the Flemish Community extended a ban on the wearing of visible symbols of ones beliefs throughout its schools in 2009. This applies to all school activities, apart from religious education and classes on non-denominational ethics.
In this case of Mikyas and Others v Belgium, the applicants were three Muslim girls who were not allowed to wear the Islamic headscarf in their post-primary schools due to the ban implemented by the Education Council. At the Tongeren Court of First Instance in 2018, the prohibition was found to be incompatible with Article 9 of the Convention, however, in the Antwerp Court of Appeal in 2019 the prior decision was quashed. After an indication received by the applicants from a lawyer in 2020 at the Court of Cassation that there was a low chance of an appeal being successful on points of law, they did not make an appeal.
The applicants brought forward a number of grounds of complaint to the ECtHR. In the Court’s decision, there was no consideration given to complaints under Articles 8, 10, and 14 of the Convention and Article 2 Protocol No.1 of the Convention. These claims were all found to be inadmissible as the applicants did not exhaust their domestic remedies.
In considering the alleged breach of Article 9, the ECtHR referred to previous case law, and highlighted the margin of appreciation enjoyed by national authorities in relation to religion. Additionally, it was noted that there was free choice exercised by the students in attending the schools, and that the parents had agreed to the rules before the students started to attend the school. The Court gave consideration also to the balance between students manifesting their religious beliefs, and whether their acts could be a source of pressure or exclusion of other students. Issue did not arise with the difference of situations for teachers and pupils in the case.
In holding that the complaints under Article 9 of the Convention were manifestly ill-founded, the ECtHR held that the restriction on rights was proportionate in achieving the aim of neutrality, and in protecting rights and freedoms attributed to others, and public order, being “necessary” “in a democratic society.”