Jair | 1993 thematic report ■ THE PROHIBITION OF DISCRIMINATION UNDER EUROPEAN HUMAN RIGHTS LAW ■ 46
■ THE PROHIBITION OF DISCRIMINATION UNDER EUROPEAN HUMAN RIGHTS LAW ■ neutral regulations. <strong>The</strong>se factors are the centrality <strong>of</strong> the particular religious manifestation to the religious belief in question ; the burden <strong>of</strong> providing an exception to the general rule in order to accommodate that religious manifestation ; and the question whether the employee has voluntarily accepted the regulation imposing the restriction to his or her religious manifestation, implying a waiver <strong>of</strong> his/her right to free exercise <strong>of</strong> religion125 . <strong>The</strong> case <strong>of</strong> Kalaç illustrates these different dimensions. 130 <strong>The</strong> applicant, a judge advocate in the Turkish air force, complained that he had been ordered to retire, together with two other <strong>of</strong>ficers and twenty-eight noncommissioned <strong>of</strong>ficers, for what the Turkish authorities considered to constitute breaches <strong>of</strong> discipline and scandalous conduct: the conduct and attitude <strong>of</strong> Mr Kalaç had led these authorities to conclude that he had adopted « unlawful fundamentalist opinions », in becoming a member <strong>of</strong> the Muslim fundamentalist Süleyman sect. Declining the invitation <strong>of</strong> the applicant to find a breach <strong>of</strong> Article 9 <strong>of</strong> the Convention protecting freedom <strong>of</strong> religion, the <strong>European</strong> Court <strong>of</strong> <strong>Human</strong> Rights considered, on the contrary, that in choosing to pursue a military career Mr Kalaç was « accepting <strong>of</strong> his own accord a system <strong>of</strong> military discipline that by its very nature implied the possibility <strong>of</strong> placing on certain <strong>of</strong> the rights and freedoms <strong>of</strong> members <strong>of</strong> the armed forces limitations incapable <strong>of</strong> being imposed on civilians », 131 and it noted that « the applicant, within the limits imposed by the requirements <strong>of</strong> military life, was able to fulfil the obligations which constitute the normal forms through which a Muslim practises his religion »: 132 30. <strong>The</strong> Supreme Military Council's order was, moreover, not based on Group Captain Kalaç's religious opinions and beliefs or the way he had performed his religious duties but on his conduct and attitude [the applicant had allegedly participated in the activities <strong>of</strong> the Süleyman community, had given it legal assistance, had taken part in training sessions and had intervened on a number <strong>of</strong> occasions in the appointment <strong>of</strong> servicemen who were members <strong>of</strong> the sect]. According to the Turkish authorities, this conduct breached military discipline and infringed the principle <strong>of</strong> secularism. 31. <strong>The</strong> Court accordingly concludes that the applicant's compulsory retirement did not amount to an interference with the right guaranteed by Article 9 since it was not prompted by the way the applicant manifested his religion. <strong>The</strong> question <strong>of</strong> the wearing <strong>of</strong> the headscarf by Muslim women constitutes another example133 . In a judgment <strong>of</strong> 29 June 2004 which the applicants are at the time <strong>of</strong> writing seeking to have referred to the Grand Chamber <strong>of</strong> the Court, a Chamber constituted within the 4th section <strong>of</strong> the <strong>European</strong> Court <strong>of</strong> <strong>Human</strong> Rights, the applicant 129 On this latter criterion, see Ahmad v. the United Kingdom, Appl. N° 8160/78, Commission decision <strong>of</strong> 12 March 1981, D.R. 22, p. 27 (schoolteacher having converted to Islam when already employed, and then requesting from his employer to be authorized to attend the Friday prayers); a similar reasoning is followed by the <strong>European</strong> Court <strong>of</strong> Justice in Case 130/75, Prais v. Council, ECR [1976] 1599. See also P. Frumer, La renonciation aux droits et libertés. La Convention européenne des droits de l’homme à l’épreuve de la volonté individuelle, Bruxelles, Bruylant, 2001, pp. 381-394. 130 Eur. Ct. HR, Kalaç v.Turkey (Appl. N° 20704/92), judgment <strong>of</strong> 1 July 1997, Rep. 1997-IV, p. 1209. 131 132 133 Referring to its judgment <strong>of</strong> 8 june 1976 in the case <strong>of</strong> Engel and Others v. the Netherlands (Series A no. 22, p. 24, para. 57), the Court recalled that « States may adopt for their armies disciplinary regulations forbidding this or that type <strong>of</strong> conduct, in particular an attitude inimical to an established order reflecting the requirements <strong>of</strong> military service ». Kalaç, § 29.<strong>The</strong> Court remarked that “For example, he was in particular permitted to pray five times a day and to perform his other religious duties, such as keeping the fast <strong>of</strong> Ramadan and attending Friday prayers at the mosque.” For recent studies on this issue, see E. Brems,“De ho<strong>of</strong>ddoek als constitutionele kopzorg”, Tijdschrift voor Bestuurs- en Publiekrecht, 2004, pp. 323-360; E. Bribosia and I. Rorive,“Le voile à l’école: une Europe divisée”, Rev. trim. dr. h., 2004, pp. 951-984; T Loenen,“Ho<strong>of</strong>ddoeken voor de klas en in de rechtbank: op weg naar een multicultureel publiek domein?”, NJCM-Bull., 2001, pp. 851-869; C.W. Maris van Sandelingenambacht, “Private deugden en publieke ondeugden: ho<strong>of</strong>ddoekjes in de openbare school?”, NJCM-Bull., 2004, pp. 992-998. 47 thematic report PART III