[Geert C]

In deze zaak was er trouwens ook een "dissenting opinion" van rechter Tulkens die het volgende zei:

11. Turning to equality, the majority focus on the protection of women’s rights and the principle of sexual equality (see paragraphs 115 and 116 of the judgment). Wearing the headscarf is considered on the contrary to be synonymous with the alienation of women. The ban on wearing the headscarf is therefore seen as promoting equality between men and women. However, what, in fact, is the connection between the ban and sexual equality? The judgment does not say. Indeed, what is the signification of wearing the headscarf? As the German Constitutional Court noted in its judgment of 24 September 20036, wearing the headscarf has no single meaning; it is a practice that is engaged in for a variety of reasons. It does not necessarily symbolise the submission of women to men and there are those who maintain that, in certain cases, it can even be a means of emancipating women. What is lacking in this debate is the opinion of women, both those who wear the headscarf and those who choose not to.

12. On this issue, the Grand Chamber refers in its judgment to Dahlab (cited above), taking up what to my mind is the most questionable part of the reasoning in that decision, namely that wearing the headscarf represents a “powerful external symbol”, which “appeared to be imposed on women by a religious precept that was hard to reconcile with the principle of gender equality” and that the practice could not easily be “reconciled with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society should convey to their pupils” (see paragraph 111 in fine of the judgment).

It is not the Court’s role to make an appraisal of this type – in this instance a unilateral and negative one – of a religion or religious practice, just as it is not its role to determine in a general and abstract way the signification of wearing the headscarf or to impose its viewpoint on the applicant. The applicant, a young adult university student, said – and there is nothing to suggest that she was not telling the truth – that she wore the headscarf of her own free will. In this connection, I fail to see how the principle of sexual equality can justify prohibiting a woman from following a practice which, in the absence of proof to the contrary, she must be taken to have freely adopted. Equality and non-discrimination are subjective rights which must remain under the control of those who are entitled to benefit from them. “Paternalism” of this sort runs counter to the case-law of the Court, which has developed a real right to personal autonomy on the basis of Article 8 (see Keenan v. the United Kingdom, no. 27229/95, § 92, ECHR 2001-III; Pretty v. the United Kingdom, no. 2346/02, §§ 65-67, ECHR 2002-III; and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002-VI)7. Finally, if wearing the headscarf really was contrary to the principle of equality between men and women in any event, the State would have a positive obligation to prohibit it in all places, whether public or private.

13. Since, to my mind, the ban on wearing the Islamic headscarf on the university premises was not based on reasons that were relevant and sufficient, it cannot be considered to be interference that was “necessary in a democratic society” within the meaning of Article 9 § 2 of the Convention. In these circumstances, there has been a violation of the applicant’s right to freedom of religion, as guaranteed by the Convention.

Deze "dissenting opinion" kan geraadpleegd worden op de website van het Europees Hof voor de Rechten van de Mens.