in Hamidović v Bosnia and Herzegovina  ECHR 1101, the European Court of Human Rights held, by six votes to one, that there had been a violation of Article 9 (thought, conscience and religion) ECHR.
The applicant, Mr Hamidović, is a Muslim. In 2012 he was a witness in the criminal trial of Mr Mevlid Jašarević, a member of the local group advocating the Wahhabi/Salafi version of Islam. The judge ordered him to remove his skullcap and when he refused he was expelled from the courtroom and was subsequently convicted of contempt of court and fined . An appeals chamber of the same court reduced the fine but upheld the rest of the first-instance decision. It held that the requirement to remove any and all headgear on the premises of public institutions was one of the basic requirements of life in society. It further held that in a secular state such as Bosnia and Herzegovina, any manifestation of religion in a courtroom was forbidden .
When Mr Hamidović failed to pay the fine, it was converted into thirty days’ imprisonment pursuant to Article 47 of the Criminal Code – a decision that was subsequently upheld. He duly served his sentence. on appeal the Constitutional Court found no breach of Articles 9 and 14 ECHR, fully accepting the reasoning of the lower court. However, it found a breach of Article 6 because of the automatic way in which fines were converted into imprisonment and ordered that Article 47 of the Criminal Code be amended. But it also decided not to quash the decision in Mr Hamidović’s case to convert the fine into imprisonment, relying on the principle of legal certainty .
Mr Hamidović argued that it was his religious duty to wear a skullcap because the Prophet Muhammad had also worn one. Therefore, the ban had been an unlawful “limitation” on the manifestation of his religion because that limitation was nowhere prescribed in statute. The House Rules on which the domestic courts had relied could not introduce extra-statutory bans into the legal system. Moreover, the sanction was disproportionate: he contended that the domestic court had wished to send a message to religious people that they were not welcome at that court and that they would be imprisoned if and when they entered its premises .
The Government conceded that the ban had amounted to a limitation on his right to manifest; however, it argued that the limitation was lawful. The House Rules on which the domestic decisions had relied had to be read in conjunction with Article 242 §3 of the Code of Criminal Procedure affording trial judges wide discretion with regard to questions of court decorum. As regards the aim of the limitation, the Government maintained that the trial judge had simply enforced a generally-accepted rule of civility and decent behaviour that skullcaps were not permitted in the courtroom. Moreover, the trial judge had acted to protect the principle of secularism, which was of vital importance in multicultural societies, such as that of Bosnia and Herzegovina. Considering also that the impugned measure had been taken in the context of a sensitive and complex case regarding a terrorist attack against the Embassy of the United States, the Government claimed that the limitation in question had been proportionate .
It was agreed that there had been a “limitation” within the meaning of Article 9 §2 . As to whether it was “prescribed by law”, the expression not only required that the impugned measure should have a legal basis in domestic law but also referred to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects . In the present case, the Fourth Section ECtHR considered that it had “no strong reasons” for disregarding the view of the Constitutional Court of Bosnia and Herzegovina that there was a basis in law for restricting the wearing of the skullcap in the courtroom . As to whether there was a “legitimate aim”, the ECtHR was prepared to accept that an aim to uphold secular and democratic values could be linked to the legitimate aim of the “protection of the rights and freedoms of others” within the meaning of Article 9 §2 .
As to whether the measure was “necessary in a democratic society”, Article 9 did not protect every act motivated or inspired by a religion or belief and did not always guarantee the right to behave in the public sphere in a manner dictated by one’s religion or beliefs ; in democratic multifaith societies it might be necessary to place limitations on freedom to manifest one’s religion or beliefs in order to reconcile the interests of the various groups and ensure that everyone’s beliefs were respected . Moreover, the Court had frequently emphasised the state’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs and that the state’s duty of neutrality and impartiality was incompatible with any power to assess the legitimacy of religious beliefs or the ways in which those beliefs were expressed . While states parties enjoyed a margin of appreciation in the matter, it “goes hand in hand with a European supervision embracing both the law and the decisions applying it” .
As to the present case, the applicant had had no choice but to appear before the domestic court  The Court was also aware that the presiding judge had had a difficult task to maintain order and ensure the integrity of the trial in a case in which a number of participants belonged to a religious group opposing the concept of a secular state and recognising only God’s law . Nevertheless, the Court concluded that the penalty was unjustified:
- there was no reason to doubt that Mr Hamidović’s act was inspired by his sincere religious belief that he must wear a skullcap at all times, “without any hidden agenda to make a mockery of the trial, incite others to reject secular and democratic values or cause a disturbance”: democracy did not simply mean that the views of a majority must always prevail. “The role of the authorities is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other” .
- there was no indication that Mr Hamidović had been unwilling to testify or that he had had a disrespectful attitude .
His punishment for contempt on the sole ground of his refusal to remove his skullcap was not, therefore, “necessary in a democratic society”  and the domestic authorities had exceeded their margin of appreciation . There had therefore been a violation of Article 9 .
In his concurring judgment, De Gaetano J (not for the first time in Article 9 cases) asked what seems to me to be the crunch question:
“It is difficult to conceive how the applicant’s behaviour, in merely keeping his skullcap on as a manifestation of his deeply-held religious belief, can be regarded as being either disrespectful towards the court or as engendering disorder or a lack of decorum in the courtroom. If the applicant had been a Catholic bishop, would he have been prevented from appearing in court wearing the pectoral cross? Or if he had been an Orthodox bishop, would he have been compelled to remove the black headdress? And what if he had been a Sikh? In the last-mentioned case, the removal of the headgear would have been a rather complicated, and possibly time-consuming, affair.”
De Gaetano J might have added, “or, had he been a Catholic cardinal, required to remove his red zucchetto.” (Or white zucchetto if the witness happened to be the Pope!)
Most old illustrations of Mohammed show a person wearing a turban. The second most popular headgear depicted is some form of burnoose. A quick look on Google Images (I’m not wasting time) shows no skullcap. It is, of course, quite possible that the claimant refused to do any research on the subject as that might have entailed looking at ancient representations of Mohammed made while there was no prohibition on such things. Did he appear in court in full C7 trader’s rig as that is what Mohammed wore?
In short: was this a put-up job?
You did not do your research well. Where did you see depictions of Muhammad?
I wondered about that as well.
Read the judgment. The ECtHR had no doubts about Mr Hamidović’s sincerity.
I used to come across illustrations of Mohammed in various places and thought nothing of it. They were formulaic and showed signs of having been copied from one MS to another over centuries. They were, in that way, iconic. There were so many that, at the time, I did not realise that there was any prohibition on such a depiction and I just assumed that everybody knew about them. I do not have time to conduct detailed searches through the libraries I have used over the years and Islamic studies was never a major part of my life. However, if you would like to look at:
you will see a variety of images collected across the centuries, some of which I recognise as similar to the ones I remember.
I would not expect the ECtHR to be anything less than serious in assessing the merits of cases brought before it. You will. however, notice (at para 28) the assertion that “The applicant argued that it was his religious duty to wear a skullcap, since the Prophet Muhammad had also worn one.” and at 30, “The parties agreed that the punishment imposed on the applicant for wearing a skullcap in a courtroom constituted a limitation on the manifestation of his religion. This is in line with the official position of the Islamic Community in Bosnia and Herzegovina, according to which the wearing of the skullcap does not represent a strong religious duty, but it has such strong traditional roots that it is considered by many as a religious duty”.
This reasoning is garbled and confuses the “official” line that wearing a skullcap is not a strong (how strong would it have to be?) religious duty with the individual’s reliance on habits of “traditional” costume not backed by religious commandments. How far an individual’s consideration of duty should outweigh the official doctrine has been the cause of civil disruption throughout the ages.
Is it any more “garbled” than the judgment in Eweida & Ors? There isn’t a single Christian Church of which I’m aware (correct me if I’m wrong) that mandates its followers to wear a cross on a neck-chain but in that case, the ECtHR held that the uniform code of BA plc was an unwarranted restriction on Ms Eweida’s Article 9 rights.
I’d have thought that Hamidović was pretty well on all fours with Eweida. Moreover, the courts are public authorities, which BA plc is not.
The wearing of a baptismal cross is a requirement of the Eastern Orthodox Church. It is based on common interpretations of Canons 73 and 82 of the Sixth Ecumenical Council (of Constantinople) and a number of other provisions of lex canonica. Ms Eweida, a Copt, may have had similar provisions – but they only recognise up to the Third Ecumenical Council in Canon Law.
Thanks! Does it have to be visible or may it be worn concealed?