tag:blogger.com,1999:blog-12963065.post113171405084951893..comments2024-03-08T07:50:03.816+01:00Comments on ComparativeLawBlog: Leyla Sahin v. Turkey: ECHR Grand Chamber JudgmentJacco Bomhoffhttp://www.blogger.com/profile/01630729945696209221noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-12963065.post-1131815758880898352005-11-12T18:15:00.000+01:002005-11-12T18:15:00.000+01:00Perhaps the aim of the ban is better described by ...Perhaps the aim of the ban is better described by Judge Tulkens, namely "the need to prevent radical Islamism". The assumption of the ECtHR accordingly seems to be that radical Islamism forms a threat to equality (and therefore "the rights and freedoms of others") and to the Turkish public order. Interestingly, the Court seems to assume this without giving arguments based on an examination of the phenomenon of radical islamism itself. This is particularly important because the whole focus of the proportionality test is on whether the headscarf-ban is 'necessary' in light of the perceived threat. As Tulkens rightly notes, the necessity of the restrictions imposed on Leyla Sahin can be questioned. However, the Court leaves a large MoA to the national authorities - the implication being that people who pose no fundamentalist threat may nevertheless be made to suffer restrictions of their rights and freedoms in order to prevent radicalism. This also appears to be the underlying motivation for the the Court's hovering between abstract and concrete review. The Court, as it were, allows the use of a net with a small mesh-size in order to catch large fish. This may have important implications for the general issue of how European democracies should respond to radical islamism. The Court apparently accepts that radical islamism forms so great a threat to the European conception of democracy and individual rights that MS have leeway in taking measures to limit it's influence, even if that works to the detriment of the rights and freedoms of people simply adhering to the muslim faith, with no radical intentions whatsoever. This indeed a potentially dangerous proposition. The only proviso so far seems to be that Turkey is seen as a 'special case' because of its history and social structure. In Turkey, the Court seems to think, radical islamism is particularly likely to gain a strong foothold in society (cf. also the Welfare Party case). One could ask the question if the outcome would have been different in another European country, e.g. France...Felixhttps://www.blogger.com/profile/06435779495102390894noreply@blogger.comtag:blogger.com,1999:blog-12963065.post-1131725492055227002005-11-11T17:11:00.000+01:002005-11-11T17:11:00.000+01:00This comment has been removed by a blog administrator.Felixhttps://www.blogger.com/profile/06435779495102390894noreply@blogger.com