Convicting a witness of contempt of court for refusing to remove his skullcap was not necessary in a democratic society

JUDGMENT

Hamidović v. Bosnia and Herzegovina 5.12.2017 (no. 57792/15)

see here  

SUMMARY 

Refusal of a witness to remove his skullcap in the courtroom by order of the judge, as religious symbols were forbidden. Sentenced to a fine for disrespect of the court. The punishment imposed on him was not necessary in a democratic society. Violation of freedom of religious conscience.

PROVISIONS 

Article 9

Article 14

PRINCIPAL FACTS 

The applicant, Husmet Hamidović, is a Bosnian-Herzegovinian citizen who was born in 1976 and lives
in Gornja Maoča (Bosnia and Herzegovina).

The case concerned his refusal to remove his skullcap while giving evidence before the criminal court
which was examining a case about the attack on the US embassy in Sarajevo in 2011. A member of a
local group advocating the Wahhabi/Salafi version of Islam was eventually convicted during the
proceedings of terrorism and sentenced to 15 years’ imprisonment; two other defendants were
acquitted. The accused all belonged to the same religious community, which opposed the concept of
a secular State and recognised only God’s law and court. The accused thus refused to stand up on
entering the courtroom during their trial, and the presiding judge ordered their removal until they
changed their minds.

In September 2012 Mr Hamidović, who also belonged to the same Wahhabi/Salafi community, was
summoned to appear as a witness during the proceedings. On standing up to address the court, the
presiding judge asked him to remove his skullcap. The judge explained that wearing a skullcap was
contrary to the dress code for judicial institutions and that no religious symbols or clothing were
permitted in court. However, Mr Hamidović eventually refused, claiming that it was his religious
duty to wear a skullcap at all times. The judge therefore expelled him from the courtroom, convicted
him of contempt of court and sentenced him to a fine.

In October 2012 the first-instance decision was upheld, an appeals chamber of the same court
holding that the requirement to remove headgear on the premises of public institutions was one of
the basic requirements of life in society and that in a secular State such as Bosnia and Herzegovina
any manifestation of religion in a courtroom was forbidden.

The fine was subsequently converted into 30 days’ imprisonment because Mr Hamidović had failed
to pay. He served the sentence.

In July 2015 the Constitutional Court of Bosnia and Herzegovina fully accepted the reasoning of the
domestic courts, finding in particular that fining Mr Hamidović for contempt of court had been
lawful and did not breach his right to manifest his religion.

THE DECISION OF THE COURT 

First, the Court emphasised the fundamentally subsidiary role of the Convention mechanism,
recalling that the national authorities were in principle better placed to evaluate local needs and
conditions, especially where the relationship between State and religions were at stake. Therefore,
the State should in general be given considerable room for manoeuvre (“wide margin of
appreciation”) in deciding whether and to what extent limiting the right to manifest one’s religion
was necessary.

However, Mr Hamidović’s case had to be distinguished from cases concerning the wearing of
religious symbols and clothing at the workplace, notably by public officials. Public officials, unlike private citizens such as Mr Hamidović, could be put under a duty of discretion, neutrality and impartiality, including a duty not to wear religious symbols and clothing while exercising official authority.

Furthermore, the Court saw no reason to doubt that Mr Hamidović’s refusal had been inspired by
anything other than his sincere religious belief that he had to wear his 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. Indeed, unlike other members of his religious group during the trial,
he had appeared before the court when summoned and had stood up when requested, thereby
clearly submitting to the laws and courts of the country. There was moreover nothing to indicate
that he had been disrespectful.

In those circumstances, the Court found that Mr Hamidović’s punishment for contempt of court on
the sole ground that he had refused to remove his skullcap had not been necessary in a democratic
society. The domestic authorities had therefore exceeded the “wide margin of appreciation”
afforded to them, in violation of Mr Hamidović’s fundamental right under Article 9 of the Convention
to manifest his religion.

The Court further found that there was no need to examine the case also from the standpoint of Article 14 of the Convention.

Just satisfaction (Article 41)

The Court held that Bosnia and Herzegovina was to pay the applicant 4,500 euros (EUR) in respect of
non-pecuniary damage.

Separate opinions

Judges De Gaetano and Bošnjak expressed concurring opinions and Judge Ranzoni expressed a
dissenting opinion. These opinions are annexed to the judgment (echrcaselaw.com editing).


ECHRCaseLaw

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