Shifting Standards in European Human Rights Rulings

In 1993, the European Court of Human Rights (ECtHR) considered the complaint of a Greek Jehovah's Witness who had been convicted of proselytizing, which is prohibited by the Greek constitution, while visiting an Orthodox woman who was the wife of a local church cantor (the one who called the police). Higher Greek courts upheld the original conviction, which allowed Kokkinakis v. Greece to proceed to the supranational court.

In the landmark case, the ECtHR found member state Greece in violation of Article 9 of the European Convention on Human Rights, which guarantees freedom of religion. The judges reminded Greece that the "margin of appreciation" generally allowed for each state's differing norms is subject to "European supervision."

"I think this is quite telling when speaking to the Greek government," said Haldun Gülalp, a professor of political science and international relations at Yildiz Technical University, Istanbul. At a public event sponsored by the UCLA Center for European and Eurasian Studies on May 28, 2009, Gülalp discussed his contribution to an EU-funded project about the court's impact. He finished writing the paper, based on interviews and research conducted with his JURISTRAS Project team, this quarter while visiting CEES and teaching at UCLA.

Majorities on the European human rights court have found Greece and Bulgaria, whose constitutions reinforce the place of Eastern Orthodox Christianity in each, in violation of Article 9 on several occasions. At another extreme, Gülalp said, the avowedly secular states of France and Turkey, with their Catholic and Muslim majorities, have never been held in violation of Article 9, and the court seems to forget about the need for "European supervision" when it encounters contests over religion and religious expression in them.

Although France and Turkey are clearly different cases, where Article 9 is concerned the court's posture towards both often has to do with fears about the influence of Islamic movements, Gülalp said.

For example, in the well-known case Leyla Sahin v. Turkey (2005), brought by a medical student who was dismissed from her university for insisting on wearing a headscarf, the court accepted arguments by Turkey about a connection between Muslim headscarves and an Islamist threat to the secular nation. According to Gülalp, some in Turkey's defense raised the supposed issue of the "proselytizing effect" that headscarves could have, an odd argument to make in light of Kokkinakis and other ECtHR rulings.

At the event, Gülalp discussed varying conceptions of secularism, strong ties between state and religion in Turkey, and other factors that complicate the summary given above. To read his paper, visit the JURISTRAS Project website.