Spain / The National Criminal and Administrative Court, Criminal Section 1ª (Audiencia Nacional, Sala de lo Penal, Sección 1ª) / Auto 530/2017, Rec. 195/2017, ES:AN:2017:793A

Country

SpainSpain

Title

Spain / The National Criminal and Administrative Court, Criminal Section 1ª (Audiencia Nacional, Sala de lo Penal, Sección 1ª) / Auto 530/2017, Rec. 195/2017, ES:AN:2017:793A

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Year

2017

Decision/ruling/judgment date

Monday, July 17, 2017

Crime type(s) concerned/related

Incitement to violence or hatred

Related hate bias motivation

Religion

Groups affected

Muslims

Court/Body type

National court

Court/Body

The National Criminal and Administrative Court (Audiencia Nacional)

Key facts of the case

National court considers lawful the prohibition of the use of the "hijab" by a woman in detention and not a breach of her right to religious freedom. The women in prison, named as Delia was in precautionary release (transitory) deprived of her liberty (imprisonment) in the Prison Centre of Valencia by a judicial order after a trial sentence which accuses her of a terrorist offence because of his alleged association with an international jihadist organization.
It was argued that the hijab hide part of the face and makes it difficult for a person to be identified. The use of the hijab by the woman imprisoned was perceived as a jihadist claim in line with other radicalization actions towards other persons imprisoned.

Main reasoning/argumentation

The appeal is based on the possible violation of the fundamental right to the religious freedom of the claimant and to what extent it could be limited for the maintenance of public order.

There were references to the European Courts with jurisdiction over human rights and supranational regulations that did have ruled on the use of hijab in public, where there was no reference to its use in prison as in this case (TEDH No. 43835/11 SAS vs. France or STEDJ (Great Chamber) G4S Secure Solutions case 2017.
It did also refer to the Spanish Constitutional Court as regards what it calls special restraint relations between the person in prison and the Prison Administration, STC 140/ 2002
The dissenting vote stated that the use of the hijab is a religious sign. The administrative decision to prohibit it is null and void.

Is the case related to the application of the Framework Decision on Racism and Xenophobia, the Racial Equality Directive?

Key issues (concepts, interpretations) clarified by the case

The right to religious freedom. Prohibition of the use of the "hijab" to an imprisoned woman because of its relationship with the Islamic terrorism. It was considered as no breach of her right to religious freedom. It was considered as a legitimate limitation imposed by the prison authority of a religious symbol for security reasons and good order. It was concluded that the garment hides part of the face and makes it difficult for a person to be identified. It was argued that the use of the hijab by the woman imprisoned as a jihadist claim in line with other radicalization actions towards other persons imprisoned, which also acts to the detriment of the rehabilitation and reinsertion purpose of the penalty. There was a dissenting vote though.

Results (sanctions, outcome) and key consequences or implications of the case

The prohibition of the use of the hijab by the women in prison during her stay at the Prison Centre is lawful.

The National Criminal and Administrative Court appreciates the appeal against the Order of the Central Prison Supervision Court that addressed a woman's complaint regarding the use of the "hijab" in the prison, stating that in the specific case the right to religious freedom of the complainant is not breach by the prohibition of the use of such a garment issued by the prison authority.

Key quotation in original language and translated into English with reference details

the limitation of its use … arising from being imprisoned by a judicial decision …, and by security … given its difficulty for her identification and concealing prohibited objects, and also given the use made by it of such a garment as a jihadist claim as part of a radicalization activities towards other imprisoned women who did share their same religion (la limitación de su uso …, derivadas de encontrarse ingresada en Centro Penitenciario por decisión judicial …., y por razones de seguridad …dada su dificultad de identificación y de ocultación de objetos prohibidos, y además dada la utilización que se realiza por parte de la misma de tal prenda como una reivindicación yihadista en labor de radicalización hacia otras internas de su misma religión)

DISCLAIMERThe information presented here is collected under contract by the FRA's research network FRANET. The information and views contained do not necessarily reflect the views or the official position of the FRA.