ABSTRACT
Based on the case law of the ECtHR, one might wonder what the result would be if the new French law and its application to Muslim girls, for instance, was brought before the Court. The notion of indirect discrimination in the Thlimmenos judgment gives reasons to assume that the Court would find that Article 9, read together with Article 14, was violated. In that case, the right to free public education following from the First Additional Protocol, Article 2, to the ECHR would support the complaint of the girl and her parents. The questionable reasoning and conclusions and the counterproductive effects of the Şahin, Dahlab, and Refah cases in relation to state parties’ attempts to restrict the right to freedom of religion or belief by reference to the principle of “secularism,” however, make the opposite result likely. The Court’s recent jurisprudence related to the notion of secularism and the “Islamic headscarf” warns of a shift from liberal toward fundamentalist secularism, corresponding to the French “laïcité stricte.” This tendency, if not reversed, may weaken the legitimacy of the Court and, more importantly, the basic rights the Court is mandated to protect.
