The discourses of Islamophobic parties and politicians whose influence has been increased throughout Europe are effecting all European institutions, including judiciary bodies.

Could you give some information about the European Court of Justice, which has taken the headscarf decision? What is its structure and task?

The European Court of Justice (ECJ) is the highest court in the European Union (EU). It is a three-tiered organization that consists of the Court of Justice, the General Court and courts of expertise. The main objective of the Court of Justice is to ensure the uniformity of the interpretation and implementation of the European Union law. The Court performs the functions of ensuring legal adherence to the interpretation and application of the Union law; harmonization of the national legal orders with the EU legal order; legal administration; commentary; conflict resolution; and legislation. The Court is also authorized to rule a few cases arising from the EU law. These are cases about lawsuits examining the member states and EU institutions’ compliance with the Union law; and interpretation of the EU law when it is necessary for the settlement of the cases in the national courts. The Court consists of one judge from each member state, the General Court consists of 28 judges, which comprises at least one judge from each member state. Judges hold office for a renewable term of six years with the consensus of the member state governments. The independence of the Judges of the Court is ensured by various provisions that regulate the status of the judges. The EU Court of Justice is seated in Luxembourg.

Is there a relationship between the European Court of Justice and the European Court of Human Rights in terms of their duties and decisions?

First of all, it must be noted that the Court of Justice is not a human rights court and it should not be confused with the European Court of Human Rights (ECHR). The ECHR is the international Court of courts established by the European Convention of Human Rights of which Turkey is a member whereas the ECHR is not a member of the EU. The Court, as mentioned above, is the highest court of the EU and its duty is not to safeguard human rights, but the interpretation and implementation of the EU law. For this reason, it should be mentioned that the decision that we will discuss was not a lawsuit directly related to and aiming to reverse a human rights violation, but it was related to the violation of the EU legislation that directly affects the right to freedom of religion. Therefore, we may argue that similar cases on this subject are likely to go to the ECHR in the future.

Earlier rulings on the banning of the headscarf by the ECHR were based on the reasoning that it could be prohibited for reasons, for example, when it is considered “a threat to public order”. However, we can say that recent political developments and the current political climate which has influenced the Court’s leanings on this issue are also valid for the ECHR, and that negative decisions giving way to the prohibition are likely to arise as a consequence of this disposition.

Can you summarize the controversial headscarf decision of the European Court of Justice? What is the content of the case? How did it come to this stage? What is the grounds for the decision of the court?

The complaint regarding the headscarf ruling was initially made by a Muslim woman named Samira Achbita, who resides in Belgium. Since 2003, Achbita had been working for the security firm G4S as a receptionist. She had been there for three years when she informed her employee that she would begin wearing the headscarf. Her employer has rejected the request by reasoning that wearing signs that symbolize and visualize political, philosophical, or religious views would be contrary to the principle of neutrality towards customers, and this is among the internal, unwritten rules of the company. Despite this ruling, Achbita informed her workplace that she intended to­ wear her headscarf to work. On the day following Achbita’s decision, a written prohibition on religious and philosophical symbols in the work place was added to the employee code of conduct. Achbita insisted on wearing her headscarf and consequently was dismissed from her position as she was acting in violation of the workplace regulation.

Samira Achbita initially filed a lawsuit in the Belgian courts, which reached the Belgian Court of Appeals. The Belgian Court of Cassation then applied to the European Court of Justice to see whether the ban on headscarves at work is in line with the EU’s 2000 Directive on equal treatment in employment and occupation. The case file and the dispute came before the Court. In other words, the Court review was not in regards of whether the prohibition was a violation of human rights and freedom of religion, but rather if it was in compliance with the EU Directive on equal treatment.

The Court ruled that the G4S security firm implemented a regulation of the workplace that did not discriminate based on religion or belief and that there was evidence to suggest that no specific discrimination was directed towards the person who filed the case and therefore it could not be ruled as a discrimination case under the EU Directive. In this particular case it was argued that there was no discrimination against a specific religion or worldview within the regulation which warranted an “indirect discrimination” case. In addition, it has been noted that it is legitimate for an employer to seek the protection of political, religious, and philosophical neutrality towards their employees and clients. It is emphasized that this rule is of particular importance for people who are in direct contact with customers.

As a result, the Court ruled that the prohibition of the wearing of visible signs of political, philosophical or religious beliefs by companies would not constitute discrimination and the prohibition with the aim of “dress neutrality” was not contrary to the EU Directive regarding the direct and indirect. Finally, the Court abstained from making a decision in a similar case in which a woman in France was also dismissed from her workplace, because in that particular case, the dismissal was due to a complaint of a customer.

What is your view on the basis of the religious symbols and the justifications of neutrality that the decision is based on?

First of all, this decision is based on the claim that the prohibition was not targeted towards a certain religious or belief group and was a general rearrangement. In the justification of the decision, there were the employer’s defense and general expressions such as religious, political and philosophical symbols. However, it is commonly known that this specifically targets Muslim women and affects those that wear the headscarf and that they are the target of these decisions. As a matter of fact, it’s not all people who wear religious symbols that are affected by this decision but mostly those who are of the Muslim faith. The decision disregards the fact that headscarf was wore with the belief that it is a mandatory requirement of Islam. Furthermore headscarf is regarded as an instrument people use to reflect their faith.

Additionally, the Court ruling regards not wearing a headscarf as “normal/essential/actual”, implies that wearing a head covering is not and that represents impartiality. Thus, the court acted with the prejudice that wearing a headscarf symbolizes a religious affiliation and automatically is contrary to any type of neutrality. This recalls the headscarf discussion that takes place in Turkey time to time, in which the headscarf has been a contested symbol in the public workplace and that this symbol gives the impression that they are in opposition to those they serve.

It must be mentioned here that the headscarf decision is not based solely on legal grounds but has been influenced by the rising overall political atmosphere in Europe. The increased influence of the far right, the Islamophobic and anti-Turkish parties and politicians did not only affect other politicians and governments but also took hold of all of Europe’s institutions as well as its judiciary. This is a political decision that has technical legal aspects.

What are the consequences for European Muslims and Turks in the future?

As I mentioned previously, this decision is not a unique one but a part of politics that began to dominate Europe in a number of areas. Indeed, the Vienna based European Union Agency for Fundamental Rights (FRA), welcomed the Court’s decision by stating that it was in line with the principles of equal treatment. It certainly would not be at all surprising if we see similar decisions made by various different courts and institutions and that this practice becomes widespread across Europe. We see the statements from different countries supporting the decision. Needless to say, contrary to values such as multiculturalism, human rights, and democracy that Europe has demanded for years and is still demanding from candidate countries such as Turkey, it is very likely that Islamophobia and anti-Turkish sentiment will continue in Europe and make living conditions for Muslims much more difficult.

The dilemma begins when the rights, or values, of two individuals clash with each other. Within the last several decades, individuals who hold strong religious beliefs have been challenged, in particular, by artists and public figures. While the Christian religion dominated discussions in the 1970s and 1980s, the famous “Rushdie Affair” in the late 80s switched the focus towards Muslims and issues connected to the Islamic religion. Primarily after 9/11, free speech was demonstrated in the form of movies (Theo van Gogh), cartoons (Jyllands-Posten), and non-fictional books (Oriana Fallaci or Thilo Sarrazin). Each of these affected Muslims and were stored in their collective memory. The history of the idea of free speech could be summed up in a radical thesis: From the death penalty of Socrates to the “Burn a Qur’an Day,” the protagonists have alternated but the extremes have remained.

The dilemma begins when the rights, or values, of two individuals clash with each other.

The most recent major cause célèbre on the subject occurred in Germany in March 2016, and can be found in legal texts such as Erdoğan vs. Böhmermann. The German comedian Jan Böhmermann used his television show to demonstrate the extents, and test the limits of free speech in Germany by giving a practical example in the form of a poem. This poem was called Schmähkritik (abusive criticism), which is a legal concept by the German Constitutional Court and will be defined later, and contained 24 lines that were filled with profanities and, more importantly, Islamophobic and anti-Turkish stereotypes targeting the President of Turkey.

Before the broadcast, Böhmermann demanded that the Turkish flag be displayed as his background, and that his reading of the poem be accompanied by a German instrumental song which was substantiated by oriental rhythms. Combined, these two elements were intended to ensure that Recep Tayyip Erdoğan knew that this poem was intended for him. This poem became the center of debate in daily German politics for weeks and, even more seriously, provoked a diplomatic issue between the states of Germany and Turkey. The media asked many legal scholars for their opinions regarding the limits of free speech, and not surprisingly, individual scholars used radically different arguments to justify their views.

For instance, one legal scholar favored the interpretation that the whole situation of the satire should be seen in relation to the bigger picture: Böhmermann, so his defenders said, used harsh words, indeed, but this display of disdain for the President of Turkey is not supposed to be seen as isolated; rather, it should be seen as highlighting a theme that was occurring in many forms of media, from cinema to books. This view is also favored by the administrative tribunal of Berlin in it’s decision whether the poem can be read out loud in front of the Turkish embassy in Berlin. This was prohibited by the court with the reference to the mentioned argument that poem singularly is an insult and not protected by free speech.

The court decision proves that the poem itself is a criminal act in the form of an insult, without a doubt.

This court decision proves that the poem itself is a criminal act in the form of an insult, without a doubt. But Böhmermann’s use of a clearly insulting poem shows us the scope of, and the lack of limitations on, free speech in Germany. This leads us to the interesting question: should an evident illegal act as codified in criminal codes in the majority of legal systems around the world become legal simply by announcing beforehand that your intention with your future actions is to insult someone? What’s more, if we take a look at the big picture, then the whole preparation and background of the poem – aside from the content – must be taken into consideration.

One consideration is that Böhmermann stated that this part of the show and poem was directed at the President of Turkey by naming him. Another consideration is that Turkish subtitles of the poem were displayed on the screen while Böhmermann read the poem aloud. The announcement that free speech is provided under the German constitution was not made, nor was the fact that there exists a German legal requirement of “showing the limits of free speech“presented in the Turkish language, so that an intention to inform the Turkish president about these legal subtleties can’t be seen by the moderator. After examining these more subtle attacks that exist outside of the pure content of the poem, it becomes clear that this manifestation of free speech as entertainment must be limited. Böhmermann’s “criticism” had no political dimension, except to unleash vulgar attacks on the person of Recep Tayyip Erdoğan.

It is a legal principle that rights are not absolute. The legal history of the United States provides us with the metaphorical example of “shouting fire in a crowded theater,” which basically means that, under certain circumstances, the freedom of speech is not boundless. With regards to the Böhmermann case, Article 5 paragraph 2 of the the German Constitution explicitly states that free speech finds its “limits in the provision of general laws, in provisions for the protection of young persons, and in the right to personal honour”. Examples of the referenced general laws can be found in Section 103 (Defamation of organs and representatives of foreign states), 130 (Incitement of hatred) or 185 (Insult) of the German Criminal Code. The German Federal Constitutional Court constructed the so-called Schmähkritik so as to limit the freedom of expression in their jurisdiction. This type of criticism does not intend an intellectual discussion and, on the contrary, puts the defamation of the person in the foreground.

This is especially the case when the sphere of intimacy is attacked, such as a person‘s sexual life, or human dignity is violated and therefore outweighs, or overrules, the freedom of expression (BVerfG, Beschluss v. 03.06.1987, Az. 1 BvR 313/85). In short, from a legal perspective, the requirements of Section 103 and 185 of the German Criminal Code is compiled so that individuals who behave as Böhmermann has behaved will be found culpable. Erdoğan has already reported an offense which was authorized by the Federal Government. But one of the most difficult things to do within the context of law is to predict a sentence. Two lawyers, three opinions.

Nevertheless, the law is pragmatic and will find a solution. But what about other norms that are non-binding, such as morality?

Nevertheless, the law is pragmatic and will find a solution. But what about other norms that are non-binding, such as morality? Professor Uwe Volkmann from Goethe University of  Frankfurt rhetorically asked in his Verfassungsblog “A rock bottom and one more rock bottom and one more rock bottom” whether the way Böhmermann delivered his poem shall be the way that public discourse should be led in the future. Volkmann warns that society will be stultified if debates are led with jargon à la Böhmermann. The sophistication of public debate should be respected and, in the meantime, he expresses his regrets that decency within discussions has been lost.

Within this context, we should more intensely debate the ethics of art, instead of giving a free pass to anything that is connected to, or claims to be, art. When the incredibly complex act of peacefully living together is taken into consideration, especially in multi-cultural societies, the law should not periodically educate people about what they are allowed to say and what they should keep to themselves in private. Rather, a sense of decency has to be a norm within society. It might be important to recall the categorical imperative of Immanuel Kant which connects morality and law in a utopian but adjusted manner: “Act only according to that maxim whereby you can, at the same time, will that it should become a universal law.”