Yannis Ktistakis: "The Exemption from General Measures"

Tearing Down Walls – Legal and Humanitarian Perspectives on Equality, State Neutrality and Pluralism


Yannis Ktistakis

Bogazici University (Istanbul, Turkey)
and Democritus University (Thrace, Greece)
Legal adviser to the Ecumenical Patriarchate

From 1989 onwards, after tearing down the Berlin wall, a significant change took place in Europe with regard to the appearance of the minority issue. The new environment coercively induced Europeans to create an adequate scope of protection for minorities, but also to develop the policy of intercultural and interfaith dialogue.

My intervention concerns the first effort, the new, more liberal, orientation concerning the legal issues of religious difference.

In the next five minutes, I will argue that religious minorities, or believers, have, in certain circumstances, the right to demand exception from general measures. In other words, I will argue that, today, according to both the European Convention on Human Rights and the European Union Law, State neutrality is not a legitimate obstacle for an indirect discrimination against religious minorities.

One clarification is necessary before proceeding:

According to the modern European perception, there are two kinds of religious discrimination: the direct and the indirect one.

There is a direct discrimination, when, on the grounds of beliefs, an individual receives a different treatment from the one that receives, has received or would receive another individual in a similar situation.

An indirect discrimination occurs, when the implementation of a prima facie neutral provision, criterion or practice is likely to provoke or provokes an adverse treatment of an individual, who is driven by certain beliefs or invokes conscience reasons, in relation to other individuals.

Then, back to my argumentation, I will try to answer two characteristic dilemmas:

Does a secular State, like France, has the right to prohibit all believers to wear religious symbols or clothing in public sphere? In other words, does a neutral provision with this content is an indirect discrimination against a practicing Muslim woman, who prefers to wear headscarf or a full face veil?

And the second characteristic dilemma: does a formally secular State, like Turkey, has the right to refuse a demand for exemption from the general protective measures concerning the use of historical monuments?

Well, in my view, there is a clear distinction between the first and the second example.

In the case of full face veil, the question concerns rather the innermost conviction of the individual, the readiness and urge to realize faith than the classical manifestation of conviction (place of worship, education, etc). And in this context, in the context of the innermost conviction, there is no room for neutral limitations. I know that it sounds a little bit strange for Orthodox or Catholic Christians that clothing is a part of innermost conviction, but I shall stress that for other religious communities (e.g., Sikhs, Buddhists, Orthodox Israelis), religious faith is equivalent to symbolisms (e.g. clothing), specified living conditions (e.g. "sacred" nutrition), contact with earth and water and, in general, to every day behaviour. In this view, modern European Human Rights law is ready to crystalize a liberal (and realistic at the same time) approach of religious freedom.

Two years ago, in the case Ahmet Arslan and others v. Turkey, the applicants, all members of a religious group known as Aczimendi tarikatÿ, complained of their conviction in 1997 for a breach of law on the wearing of headgear and of rules on wearing religious garments in public, after having toured the streets and appeared at a court hearing wearing the distinctive dress of their group (made up of a turban, baggy trousers a tunic and a stick). The European Court of Human Rights found then a violation of freedom of religion.

Last week, the Plenary of Strasbourg Court examined the complaint of a practicing Muslim woman wearing headscarf in public places in France. I'm rather sure that the Plenary's judgment will confirm the Ahmet Arslan case-law.

But, there are cases where religious neutrality might take precedence over the right to manifest one's religion. And this is the case of my second example, the use of historical monuments. At first, it is acceptable for the needs of collective manifestation of religious beliefs to give a permission to a religious group to use an old place of worship if this specific manifestation is not opposite to public order. This was the case of Soumela Monastery in Trabzon: once per year, a few believers, in an area where no other place of worship exists for Orthodox Christians.

But, State authorities have the right and the duty to protect, under neutral and general provisions, any big or small historical monument, which is located near several other places of worship. In other words, the Muslim majority cannot ask for an exemption from the general prohibition to use Agia Sophia because, firstly, they can pray in several other Mosques just near Agia Sofia, secondly, because Muslims believers are not one or two hundred but millions, and they are bound to cause damage to the building and, finally, because there is a historical tension between the Muslim majority and the Orthodox minority concerning the use of the monument, and this is a very significant public order reason for denying the use of the monument.