On July 10 the Supreme Court of Russia handed down a decision regarding the legality of the ban on wearing a hijab in schools in the Stavropol Territory.
It all began in October of last year, when the government of the Stavropol Territory passed a resolution which, among other things, forbade the wearing of a hijab at school. The parents of some schoolgirls went to court to contest this decision. In February 2013 the Stavropol Territorial Court dismissed the suit; the complaint was sent to the Supreme Court of Russia, and now the Supreme Court has handed down its verdict dismissing the appeal.
The plaintiffs who lost the case are prepared to go further. Most likely this means going to the European Court of Human Rights. In connection with this, the practice of the European Court, which has already considered several cases similar to the situation in the Stavropol case, is of some interest. It may be that after examining this practice, the plaintiffs will think better of appealing to the «supreme European authority».
Over the past three years alone, the European Court of Human Rights (ECHR) has handed down several decisions which directly touch upon the issue of the religious rights of citizens in the context of the secular character of the state in general and the separation of the church from the [state] school in particular. For example, in March 2011 the Grand Chamber of the ECHR handed down a decision on the case of Lautsi and others v. Italy. The Russian Federation took part in this case as an interested party, and thus the conclusions in this case have particular significance for Russia. This case had to do with the complaint of Italian citizen Soile Lautsi that there were crucifixes in the classrooms where her children attended classes. The plaintiff asserted that this is a violation of the right to education and the right to freedom of thought, conscience and religion. The defendant (the government of Italy) asserted that the crucifix has not only a religious meaning, but a cultural one as well, and thus cannot be reduced exclusively to its religious aspect.
The first decision on this case was handed down by a lower chamber of the ECHR (November 2009); this chamber unanimously found that a number of articles of the European Convention of Human Rights had been violated. However, when the case was considered in the Grand Chamber (essentially when the appeal of the prior decision was considered), the European Court came to the opposite conclusion. In explaining its decision, the Court stated that the decision to place crucifixes in the classrooms of state schools is an issue in which the state may act at its own discretion. The Court only verified that no participant state of the Convention went beyond the bounds of its freedom. There are also several decisions of the European Court of Human Rights which directly touch upon the right to wear hijabs at school. These are the decisions of the ECHR on the cases of Dahlab v. Switzerland, Şahin v. Turkey and Dogru v. France. (1) In all these decisions, the European Court came to the conclusion that prohibiting the display of a religious symbol in school, in particular, the wearing of a hijab, does not violate the European Convention on Human Rights.
At first it may seem that the decision on the Lautsi case contradicts the decisions on the hijab cases. Indeed, when handing down the decision on Italy's violation of the Convention, the lower chamber of the ECHR referred to the decision on Dahlab v. Switzerland. In this decision the ECHR noted that this is a matter of a «powerful religious symbol» and, consequently, it is «difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination…»
However, as it turned out, the lower chamber was wrong. The Grand Chamber of the ECHR stated that the Dahlab case «cannot serve as a basis in this case because the facts of the two cases are entirely different». The main conclusion that can be drawn from the current practice of the European Court of Human Rights is that the Court acknowledges that the resolution of issues regarding the presence of religious symbols in educational institutions is always in the sphere of the state's discretion.
Once you understand the ECHR's logic, it is apparent that there is in fact no contradiction between the decisions on the Lautsi case on the one hand and the Dahlab, Şahin and Dorgu cases on the other. The Court, in essence, has taken a neutral position on the issue of the state's right to determine the form and limitations of interaction with religion which it (the state) considers most acceptable. If there are no direct violations of the provisions of the European Convention, of course.
Thus, the decision of the Supreme Court of Russia on July 10, 2013 not only fully conforms to the law of Russia, but to the European Convention on Human Rights, as well as the established practice of the European Court of Human Rights in interpreting and applying this convention.
However, one cannot but note the following. In recent years more and more new complaints from «individual citizens» aimed at undermining the public safety of these states have begun to be filed with the European Court of Human Rights. (2) In connection with this, the Lautsi case and a number of other cases which are supposedly connected with deeply personal rights, including religious rights, are especially significant. It is no accident that the Italian government found it necessary to note that «the sign of the cross…could be perceived not only as a religious symbol, but also as a cultural and identity-linked symbol, the symbol of the principles and values which formed the basis of democracy and western civilisation,» and which are understood and cherished not only by Christians. The majority of the judges of the European Court of Human Rights came to their senses in time and overturned the decision (made unanimously!) of the lower chamber of the ECHR. However, in and of itself the fact of an attempt to undermine the centuries-old principles of the state by several judges of the European court (and at the request of «one citizen») forces one to be more attentive to this incident. What they did not succeed in doing now with Italy they might soon try to do with another participant state of the Convention on Human Rights…