Information Note on the Court’s case-law 213
December 2017
Hamidović v. Bosnia and Herzegovina - 57792/15
Judgment 5.12.2017 [Section IV]
Article 9
Article 9-1
Manifest religion or belief
Punishment of witness for refusing to comply with court order to remove skullcap when giving evidence: violation
Facts – The applicant, who was a member of a local group that advocated the Wahhabi/Salafi version of Islam, was called to give evidence at the criminal trial of other members of the group who were charged with terrorist offences. He duly appeared at the trial as summoned, but refused to remove his skullcap when asked to testify arguing that it was his religious duty to wear it at all times. After being given time to reflect and warned of the consequences if he continued to disobey the order to remove his skullcap, he was found to be in contempt of court and ordered to pay a fine, which was subsequently converted into thirty days’ imprisonment when he refused to pay.
Law – Article 9: The punishment imposed on the applicant for wearing a skullcap in a courtroom constituted a limitation on the manifestation of his religion. The restriction was based on the inherent power of the trial judge to regulate the conduct of proceedings in the State Court, it being noted that the applicant was informed of the applicable rule and of the consequences of disobeying. The restriction also pursued a legitimate aim as the Court had previously held* that secularism was a belief protected by Article 9 of the Convention and 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”.
As to whether the restriction had been necessary in a democratic society, the Court was aware that the presiding judge had had the difficult task of maintaining order and ensuring 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 and court. It also took note of the overall context at the time of the trial.
Nonetheless, it considered that the measure taken was not justified.
The applicant’s case concerned a witness in a criminal trial, which was a completely different issue to and had to be distinguished from cases concerning the wearing of religious symbols and clothing at the workplace, notably by public officials exercising official authority. While 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, and while there could be cases when it was justified to order a witness to remove a religious symbol, the authorities were required not to neglect the specific features of different religions. Freedom to manifest one’s religion was a fundamental right: not only because a healthy democratic society needs to tolerate and sustain pluralism and diversity, but also because of the importance to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others.
The Court saw no reason to doubt that the applicant’s act was inspired by his sincere religious belief that it was his religious duty to 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. Unlike some other members of his religious group, the applicant had appeared before the court as summoned and stood up when requested, thereby clearly submitting to the laws and courts of the country. There was no indication that he was not willing to testify or that he had a disrespectful attitude. In these circumstances, his punishment for contempt of court on the sole ground of his refusal to remove his skullcap was not necessary in a democratic society and the domestic authorities had exceeded their wide margin of appreciation.
Conclusion: violation (six votes to one).
Article 41: EUR 4,500 in respect of non-pecuniary damage.
(See also the Factsheet on Religious symbols and clothing)
* See Lautsi and Others v. Italy [GC], 30814/06, 18 March 2011, Information Note 139.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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