Decision of the ECHR of December 5, 2017 in the case of Hamidovic v. Bosnia and Herzegovina (application no. 57792/15).
In 2015, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Bosnia and Herzegovina.
The case was successfully considered a complaint about the appointment of a fine by the court to the applicant, who refused to remove the traditional religious headgear while giving evidence in court as a witness in the criminal case. In the case there was a violation of the requirements of Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant, who was a member of a local group that professed the Wahhabi / Salafite version of Islam, was summoned to testify in the criminal proceedings in the case of other members of the group who were accused of crimes of a terrorist nature. He properly appeared at the summons to the court, but refused to remove the traditional religious headgear while giving evidence, arguing that his religion obliged to wear this hat permanently. After being given time for reflection and warning about the consequences of continuing disobeying the requirement to remove the hat, he was found guilty of contempt of court, and he was fined, which was later converted to 30 days of imprisonment when he refused to pay him.
ISSUES OF LAW
Concerning compliance with article 9 of the Convention. The punishment applied to the applicant for wearing a headdress in the courtroom was the restriction of the confession of his religion. The restriction was based on the inherent power of the judge to direct the proceedings before the State Court, and the applicant was notified of the applicable rule and the consequences of disobedience. The restriction also pursued a legitimate aim, as the Court had previously pointed out (see Lautsi and Others v. Italy, judgment of 18 March 2011, no. 30814/06. : Bulletin of the European Court of Human Rights 2011. N 9) that secularism is a conviction protected by Article 9 of the Convention and that the goal of maintaining secular and democratic values can be related to the legitimate aim of "protecting the rights and freedoms of others." With regard to the need for restraint in a democratic society, the Court is aware that the presiding judge was faced with the difficult task of maintaining order and ensuring the objectivity of this trial in a case in which a number of participants belonged to a group opposed to the concept of a secular state and recognizing only the law of God and the court . It also takes into account the general context of the trial. Nevertheless, the Court considers that the measure applied was not justified.
The applicant's case concerned a witness in a criminal case, and this is a completely different matter that should be distinguished from cases involving the wearing of religious symbols and clothing in the workplace, especially public officials exercising official authority. While Article 9 of the Convention does not protect every act motivated or inspired by religion or belief, and does not always guarantee the right to behave in the public sphere in the manner dictated by a person's religion or beliefs, and although there are cases when the requirement for a witness to remove a religious symbol is justified, the authorities are invited not to lose sight of the specific characteristics of different religions. Freedom of religion is a fundamental right not only because only a healthy democratic society needs to preserve and maintain pluralism and diversity, but also because of the importance for a person for whom religion is the basic rule of one's life, to be able to communicate one's belief to others.
The Court sees no reason to doubt that the applicant's actions were justified by his sincere religious conviction that his religious duty is the constant wearing of religious clothing, in the absence of a latent intention to ridicule the trial, incite others to deny secular and democratic values or cause riots . Unlike some other members of his religious group, the applicant appeared on a summons to the court and stood up on demand, thereby clearly obeying the law and the courts of the country. There was no evidence that he did not want to testify or behaved disrespectfully. In such circumstances, his punishment for contempt of court on the sole ground that he refused to remove the hat was not necessary in a democratic society, and the authorities of the respondent state went beyond the broad limits of their discretion.
In the case there was a violation of the requirements of Article 9 of the Convention (adopted by six votes "for" at one - "against").
In the application of Article 41 of the Convention. The Court awarded the applicant EUR 4,500 in respect of non-pecuniary damage.