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Global Jurist

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Framing the Boundaries of European Human Rights Law

Can Öztaş
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  • Head of Department in the Turkish Ministry of Foreign Affairs and Associate Lecturer at the Law Faculty of Ankara University
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Published Online: 2014-05-21 | DOI: https://doi.org/10.1515/gj-2014-0008

Abstract

European human rights protection, ensured by the European Convention and Court of Human Rights, is declared to be universal and inclusive, protecting not only citizens of Europe but also anybody residing within the jurisdiction of the signatory countries. This article challenges this declaration and argues, with the help of some examples from the case law, that European human rights protection is based on the defined concepts of European-ness that exclude the perceived non-European within the Convention and the Court system.

Keywords: human rights; discrimination; racism; European human rights protection; case law of the European Court of Human Rights; Europe; exclusion; universal

References

  • Asad, Talal. 2003. Formations of the Secular, Christianity, Islam, Modernity. Stanford, CA: Stanford University Press.Google Scholar

  • Derrida, Jacques. 1996. Remarks on Deconstruction and Pragmatism. In Deconstruction and Pragmatism, edited by C. Mouffe. London: Routledge.Google Scholar

  • Douzinas, Costas. 2002. Identity, Recognition, Rights or What can Hegel Teach us about Human Rights? Journal of Law and Society 29 (3):379–384.CrossrefGoogle Scholar

  • Foucault, Michel. 2004. Society Must Be Defended, Lectures at the College de France 1975–6. London: Penguin Books.Google Scholar

  • Moyn, Samuel. 2010. The Last Utopia Human Rights in History. London: The Belknap Press of Harvard University Press.Google Scholar

  • Otto, Dianne. 2006. Lost in Translation: Rescripting the Sexed Subjects of International Human Rights Law. In International Law and Its Others, edited by A. Orford. Cambridge: Cambridge University Press.Google Scholar

  • Pagden, Anthony. 2002. Introduction. In The Idea of Europe From Antiquity to the European Union, A. Pagden. Cambridge: Cambridge University Press.Google Scholar

  • Tomuschat, Christian. 2003. Human Rights between Idealism and Realism. Oxford: Oxford University Press.Google Scholar

Judgements

  • Airey v. Ireland, no. 6289/73 (9 October 1979)Google Scholar

  • Alexandris v. Greece, no. 19516/06, (21 February 2008)Google Scholar

  • Dahlab v. Switzerland, no. 42393/98 (15 February 2001)Google Scholar

  • Dicle and Democratic Party (DEP) of Turkey v. Turkey, no. 34685/97 (10 November 2004)Google Scholar

  • Hasan and Chavush v. Bulgaria, no. 30985/96 (26 October 2000)Google Scholar

  • Herri Batasuna and Batasuna v. Spain (nos. 25803/04 and 25817/04 30 June 2009)Google Scholar

  • Ivanova v. Bulgaria, no. 52435/99 (12 April 2007)Google Scholar

  • Karaduman v. Turkey, no. 16278/90, (3 May 1993)Google Scholar

  • Kokkinakis v. Greece, no. 14307/88 (25 May 1993)Google Scholar

  • Lautsi v. Italy, no. 30814/06 (18 March 2011)Google Scholar

  • Loizidou v. Turkey, no. 15318/89, Decision on Preliminary Objections (23 March 1995)Google Scholar

  • Manoussakis v. Greece, no. 18748/91, (26 September 1996)Google Scholar

  • Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, (13 December 2001)Google Scholar

  • Refah Partisi (The Welfare Party) and Others v. Turkey, nos. 41340/98, 41342/98, 41343/98 and 41344/98 (31 July 2001)Google Scholar

  • Şahin v Turkey, no. 44774/98 (29 June 2004)Google Scholar

  • Socialist Party and Others v. Turkey, no. 21237/93 (28 May 1998)Google Scholar

  • Soering v. the United Kingdom, no. 14038/88 (7 July 1989)Google Scholar

  • United Communist Party of Turkey v. Turkey, no. 19392/92 (30 January 1998)Google Scholar

  • Yazar and Others v. Turkey nos. 22723/93, 22724/93 and 22725/93 (9 April 2002)Google Scholar

  • Young, James and Webster v United Kingdom, nos. 7601/76 and 7806/77 (13 August 1981)Google Scholar

Online Sources

About the article

Published Online: 2014-05-21

Published in Print: 2013-08-01


In this chapter, I develop my theory mainly on Islam perceived as non-European, however in the broader picture, which I pursued for my PhD project, one would find that not only Islam but exclusions based on gender, ethnicity and nationality and race (immigrants, Roma/travellers, indigenous people – e.g. Sami of Scandinavia) continue to exist in Europe, and most of the exclusions are a part of the case of the ECHR. Thesis submitted to Birkbeck Law School, University of London and passed without corrections in July 2013.

Airey v. Ireland, no. 6289/73 (9 October 1979), para. 24.

Loizidou v Turkey, Decision on Preliminary Objections, para. 93; United Communist Party of Turkey v Turkey, para. 45; Soering v the United Kingdom, para. 88.

“Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy.” Para. 5 of the Preamble.

Second paragraphs of Articles 8–11 in the ECHR aims to become a safeguard for the observance of democratic process and prevents that no private party could invoke Convention rights in order to destroy or weaken the values of democratic society.

United Communist Party of Turkey v. Turkey, no. 19392/92 (30 January 1998).

Ibid., para. 43.

Ibid., para. 25.

Ibid., para. 57.

Socialist Party and Others v. Turkey, no. 21237/93 (28 May 1998).

Ibid., para. 50.

Ibid., para. 56.

Ibid., para. 57.

Socialist Party and Others v. Turkey, no. 21237/93 (28 May 1998), para. 13.

Ibid., para. 46.

Ibid., para. 47.

Dicle and Democratic Party (DEP) of Turkey v. Turkey, no. 34685/97 (10 November 2004).

Herri Batasuna and Batasuna v. Spain, nos. 25803/04 and 25817/04 (30 June 2009).

Ibid., para. 63–4.

Ibid., para. 88.

Ibid., para. 86–8.

Socialist Party and Others v. Turkey, para. 35–36.

Ibid., para. 57.

The decision of the Constitutional Court dated 16.01.1998 concerning Refah Partisi (the decision can be reached in Turkish at www.resmigazete.gov.tr its issue on 22 February 1998.

In general elections in 1995 the party received around 22% of the total votes, and in the local elections in 1996 it received 35% of the total votes cast www.secim-sonuclari.com/refah-partisi.parti

Refah Partisi (The Welfare Party) and Others v. Turkey, nos. 41340/98, 41342/98, 41343/98 and 41344/98, 31 July 2001, para. 83.

Dissenting Opinion of Judges Fuhrmann, Loucaides and Sir Nicholas Bratza, Refah Partisi (The Welfare Party) and Others v. Turkey, nos. 41340/98, 41342/98, 41343/98 and 41344/98 (31 July 2001).

Socialist Party v. Turkey, para. 67, 91–96 and 99.

Ibid. para. 119, 122, 123 and 130.

Article 2 of the Constitution of Turkey guarantees the principle of secularism, the principle of unitary state is guaranteed by the Article 3 of the Constitution of Turkey and according to the Article 4 of the same constitution, both these principles are unquestionable or unchangeable in nature. See: http://global.tbmm.gov.tr/docs/constitution_en.pdf

Socialist Party v. Turkey, para. 128.

Ibid., para. 94.

Ibid., para. 99.

Ibid., para. 107.

Kokkinakis v. Greece, 25 May 1993, Series A no. 260-A, para. 31.

Manoussakis and Others v. Greece, (18748/91) [1996] ECHR 41 (26 September 1996), para. 41–44.

Kokkinakis, para. 49.

Alexandris v. Greece, no. 19516/06, (21 February 2008), para. 32.

Manoussakis, paras 47–48.

Hasan and Chavush v. Bulgaria, no. 30985/96 (26 October 2000), para. 62.

Ivanova v. Bulgaria, no. 52435/99, 12 April 2007, para. 84.

Metropolitan Church of Bessarabia and Others v Moldova, 13 December 2001. Case no. 45701/99, para. 130.

One would realise that all the judgements quoted above are related to Orthodox majority countries. And there are more cases to quote with same principles argued against what the Court describes as arbitrary actions of the state against religious freedom. In the broader analysis that I pursued for my PhD work, I concluded that the Court’s judgements demonstrate a clear guiding intention, which is explicitly framed by the Court as European supervision. The Orthodox majority countries are recognised as not mature or pluralist enough, and thus perceived as needing a clear European supervision in order to reach desired maturity level. It is important to note that the Court explicitly protected all beliefs of the minorities including Islam against what it considered to be an interventionist attitude of mainly Orthodox majority countries.

Karaduman v Turkey (1993) 74 DR 93.

Ibid., para. 2.

Alexandris v. Greece, no. 19516/06, 21 February 2008.

Ibid., para. 31. The Court in Karaduman:

The Commission also takes the view that a university degree certificate is intended to verify a student’s capacities for employment purposes, it is not a document intended for the general public. The purpose of the photograph affixed to a degree certificate is to identify the person concerned. It cannot be used by that person to manifest his religious beliefs.

The Court in Alexandris:

Si la liberté religieuse relève d’abord du for intérieur, elle implique également celle de manifester sa religion individuellement et en privé, ou de manière collective, en public et dans le cercle de ceux dont on partage la foi. Par ailleurs, la Cour a déjà eu l’occasion de consacrer des droits négatifs au titre de l’article 9 de la Convention, notamment la liberté de ne pas adhérer à une religion et celle de ne pas la pratiquer. (the judgement is originally in French). Alexandris v. Greece, no. 19516/06 (21 February 2008).

Especially in countries where the great majority of the population owe allegiance to one particular religion, manifestation of the observances and symbols of that religion, without restriction as to place and manner, may constitute pressure on students who do not practice that religion or those who adhere to another religion. Where secular universities have laid down dress regulations for students, they may ensure that certain fundamentalist religious movements do not disturb public order in higher education or impinge on the beliefs of others. (The Commission also takes into consideration the observations of the Turkish Constitutional Court, which has held that the act of wearing a Muslim headscarf in Turkish universities may constitute a challenge towards those who do not wear one). Cf. Karaduman v. Turkey, no. 16278/90 (3 May 1993).

Dahlab v. Switzerland, no. 42393/98 (15 February 2001).

Ibid., Italics added by the author.

Leyla Sahin v. Turkey, 29 June 2004. Application no. 44774/98.

Ibid., para. 71.

Ibid., para. 98.

Ibid., para. 115.

Ibid., para. 30–35 and 55–65.

Refah Partisi (The Welfare Party) and Others v. Turkey, nos. 41340/98, 41342/98, 41343/98 and 41344/98 (31 July 2001).

Ibid., para. 111. The Court also notes that in the decisions in Karaduman v. Turkey (no. 16278/90, Commission decision of 3 May 1993, DR 74, p. 93) and Dahlab (cited above) the Convention institutions found that in a democratic society the State was entitled to place restrictions on the wearing of the Islamic headscarf if it was incompatible with the pursued aim of protecting the rights and freedoms of others, public order and public safety. In Karaduman, measures taken in universities to prevent certain fundamentalist religious movements from exerting pressure on students who did not practise their religion or who belonged to another religion were not considered to constitute interference for the purposes of Article 9 of the Convention. Consequently, it is established that institutions of higher education may regulate the manifestation of the rites and symbols of a religion by imposing restrictions as to the place and manner of such manifestation with the aim of ensuring peaceful coexistence between students of various faiths and thus protecting public order and the beliefs of others (see, among other authorities, Refah Partisi (the Welfare Party) and Others, cited above, § 95). In Dahlab, which concerned the teacher of a class of small children, the Court stressed among other matters the “powerful external symbol” which her wearing a headscarf represented and questioned whether it might have some kind of proselytising effect, seeing that it appeared to be imposed on women by a religious precept that was hard to reconcile with the principle of gender equality. It also noted that wearing the Islamic headscarf could not easily be reconciled with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society should convey to their pupils.

Sahin v. Turkey, para. 93.

Cf. Dissenting opinion of Judge Tulkens, Şahin v. Turkey, Application no. 44774/98, judgement 10 November 2005 (stating that

…merely wearing the headscarf cannot be associated with fundamentalism and it is vital to distinguish between those who wear the headscarf and ‘extremists’ who seek to impose the headscarf as they do other religious symbols. Not all women who wear the headscarf are fundamentalists and there is nothing to suggest that the applicant held fundamentalist views… The ban on wearing the headscarf is therefore seen as promoting equality between men and women. It is not the Court’s role to make an appraisal of this type – in this instance a unilateral and negative one – of a religion or religious practice, just as it is not its role to determine in a general and abstract way the signification of wearing the headscarf or to impose its viewpoint on the applicant. The applicant, a young adult university student, said – and there is nothing to suggest that she was not telling the truth – that she wore the headscarf of her own free will.

Lautsi v. Italy, no. 30814/06, 18 March 2011, para. 72.

Ibid., para. 66.

Ibid.

The Court, following on and referring to the Şahin judgement, found no violation in Dogru v. France (no. 27058/05, 4 December 2008) and Kervanci v. France (no. 31645/04, 4 December 2008) and declared inadmissible Aktas v. France (no. 43563/08), Bayrak v. France (no. 14308/08), Gamaleddyn v. France (no. 18527/08), Ghazal v. France (no. 29134/08), J. Singh v. France (no. 25463/08) and R. Singh v. France (no. 27561/08). In all these cases, the Court did not consider the concrete and specific circumstances of the individual applications, transforming the entire individual procedure into an empty formality.

Woman as other is only ever represented by assimilating her to existing economies and languages – as wife and mother in need of protection, as the woman who is ‘formally equal’ to man in public life, and as the victim subject in need of rescuing. These characters are haunting – they display ‘an uncanny ability to survive, despite the best efforts of feminist legal strategists’ (Otto, 2006: 321).

The ECHR’s supervision is functional to marking another historical difference between the democratic and plural Europe and the despotic East. The fact that Turkey is perceived to be oppressing certain groups of people helps Europe to exclude Turkey from Europe. As a consequence, Europe would not volunteer to guide Turkey along the European path and will not help the full pluralisation of Turkey, because it remains to be despotic, this excuse conveniently fits in the attempt to exclude Turkey from Europe. Thus Turkey is excluded twice, first because it is not democratic enough and second because it can never be democratic enough. Being aware of complications that this argument determines, and the limitations of the article, I will use the words of Pagden to conclude the discussion:

From the tenth century until the dismemberment of the Ottoman Empire in the nineteenth, Islam had been Europe’s most constant other, in terms of religion, and politically and culturally, as the expression of various kinds of oriental despotism, it is easy to see how a European Muslim might appear to be virtually an oxymoron … in the contemporary European suspicion of Turkey, Christian history, enshrined in the tradition of international law, is being reinvoked in secular language as the foundation of an ancient identity (Pagden, 2002: 12–13).


Citation Information: Global Jurist, ISSN (Online) 1934-2640, ISSN (Print) 2194-5675, DOI: https://doi.org/10.1515/gj-2014-0008.

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