Hijabs again: Lachiri v Belgium

The ECtHR has ruled in favour of a Muslim woman, Mrs Hagar Lachiri, who was excluded from the courtroom in a criminal trial on account of her refusal to remove her hijab.

The background

In Lachiri v Belgium [2018] ECHR 727 [French only], Mrs Lachiri and other members of her family applied to join proceedings as civil parties seeking damages in relation to the prosecution for unlawful killing of the man who had assaulted her brother – who had died from his wounds. In 2007 her brother’s assailant was committed for trial before the Criminal Court on charges of premeditated assault and wounding resulting in unintentional death. Mrs Lachiri and the other civil parties appealed against that decision, submitting that he should be tried for murder before the Cour d’Assises. On the day of the hearing before the Indictments Division of the Brussels Court of Appeal, in accordance with the decision of the presiding judge, the court usher told Mrs Lachiri that she could not enter the hearing room unless she removed her hijab. In response to a request for clarification made by Mrs Lachiri’s representative, the President of the Chamber of Indictments said that she had taken that decision under Article 759 of the Judicial Code. Mrs Lachiri refused to comply and did not attend the hearing [9-14].

Relying on Article 9 (right to freedom of thought, conscience and religion), she complained that her exclusion from the courtroom infringed her freedom to express her religion.

The judgment

The Second Section reiterated the general principles derived from its case-law on freedom of conscience and religion and the freedom to manifest religion or belief as applied to the ban on wearing religious dress in the public space in the judgment SAS v France [2014] ECHR [GC] 43835/11 [at 124-136], ECHR 2014 (extracts)). But the hijab was a head-covering rather than, as in SAS, face-veil. As to whether the impugned restriction was proportionate to the aim pursued and whether the reasons adduced by the national authorities were relevant and sufficient, the Court noted that the applicant was a civil party, with other family members, in the context of criminal proceedings following the death of her brother [40 & 41].

In its judgment of 12 September 2007, the Chamber of indictments had confirmed that its President of the Chamber of indictments, in making the decision, had complied with the provisions of Article 759 of the Judicial Code and the Supreme Court had rejected an appeal [42]. The President of the Chamber of indictments had been content to refer to the legal provision which, according to its interpretation, forbade the applicant’s hijab [43]. The Court observed that the applicant was a private citizen rather than a representative of the State exercising a public function and could not, therefore, be subject to a duty of discretion in the public expression of religious beliefs on account of any official status [44].

Mrs Lachiri had argued that the Palais de Justice was a public place and open to all. A court could be part of the “public space” – as opposed to the workplace, for example – but, in the Court’s view, it was not the same kind of public place as, for example, a road. A court was a “public” institution in which respect for the neutrality toward beliefs could override the free exercise of the right to manifest religion [45]. Nevertheless, the facts of the present case did not suggest that the applicant behaved at the courtroom entrance in a way that was disrespectful or a threat to the smooth running of the hearing [46].

The Court therefore concluded that the need for the restriction at issue had not been established and that the infringement of Mrs Lachiri’s Article 9 rights was not justified in a democratic society [47]. Accordingly, there had been a violation of Article 9 [48].

Cite this article as: Frank Cranmer, "Hijabs again: Lachiri v Belgium" in Law & Religion UK, 18 September 2018, https://lawandreligionuk.com/2018/09/18/hijabs-again-lachiri-v-belgium/

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