*** SARAH HAVERKORT-SPEEKENBRINK: European Non-Discrimination Law. A Comparison of EU Law and the ECHR in the Field of Non-Discrimination and Freedom of Religion in Public Employment with an Emphasis on the Islamic Headscarf Issue. Intersentia Ltd (Trinity House, Cambridge Business Park, Cowley Road, Cambridge CB4 0WZ, UK. Tel: (32-3) 6801550 - fax: 6587121 - Email: mail@intersentia.be - Internet: http://www.intersentia.com ). "School of Human Rights Research" series, No. 59. 2012, 375 pp. €75, £71, $105. ISBN 978-1-78068-126-9.
It is rather unusual that a scientific paper should begin on a work of fiction but this is perfectly plausible and indeed even announces what future development is going to occur. This is the case with this book, which stems from a legal thesis written at the Dutch Institute for Human Rights at the University of Utrecht. According to the introductory paragraph written in italics, and on 10 July 2012, a senior legal body in one of the Union's member states files a referral for a preliminary ruling at the European Court of Justice to clarify, “the interpretation of the principle of non-discrimination regarding the wearing of the veil at work”. The question is a serious one because a 25-year-old teacher of Moroccan origin has just been sacked and the head of the secondary school where she worked explained that this dismissal resulted from, “a legal measure stipulating that the public workplace must be absolutely neutral in terms of symbols that demonstrate personal conviction, such as religious or political symbols”. Subsequently, action was taken by the lawyer on behalf of the complainant against the state, accusing it of perpetrating discrimination based on religion, gender and racial or ethnic origin. In the first paragraph, the “novelist” concludes that, “perhaps the Court in Luxembourg will be able to resolve the persistent multicultural problem raised by the Islamic veil”…
The distinguished legal expert's analysis follows in the next paragraph and is no less passionate, given the multitude of multicultural issues accumulating in Europe involving the ritual slaughter of animals, to the refusal to shake the hand of the person of the opposite sex, to questions of the veil and circumcision. These issues are often very emotive in a European Society, which fosters, “a rather critical if not negative attitude” towards the Muslim religion. It also opens up another can of worms into far as European countries have adopted different attitudes regarding the veil, which range from a severe approach in France (banning the wearing of the veil by pupils in primary and secondary schools), to tolerance in the Netherlands and United Kingdom and incoherence in the German regions, which bans teachers from wearing the veil but allows them to wear crucifixes, for example. There are, however, much more specific questions that are of interest to the legal specialists in this field. First of all, the Union does actually possess a legal arsenal for specifically fighting against different kinds of discrimination and that the European Court of Justice will obviously, one day, be called on to interpret one or other of the different provisions, which will suddenly lead it to providing member states with a number of guidelines in this connection. There is also the question that, judging by the evidence, the Union is not alone in setting out the rules for this area and that the Council of Europe has also even been the precursor in this matter with regard to the question of human rights and has not only adopted provisions aimed at ensuring non-discrimination but has also erected the absolute rule of… freedom of religion. We subsequently see a possible collision between these rights and, in particular, the appropriate Community directives (Directives 2000/43, 2000/78 and 2006/54) and the more general provisions contained in the Convention on Human Rights and Fundamental Freedoms, particularly in the sector of public employment.
The basic question on which this Ph.D. thesis stems and which is illustrated in this extremely comprehensive book are as follows, “in light of the question regarding the Islamic veil, what are the similarities and differences of assessment carried out by the European Court of Justice and the European Court of human rights, with regard to allegations of discrimination based on gender, race and/or religion in the public employment sector?” Sarah Haverkort-Speekenbrink succeeds in providing a number of exact and exhaustive responses, as well as a methodological analysis of the specificities of the provisions in the different sources of law. The ultimate goal is to identify similarities and differences in the approaches of the two legal jurisdictions. One of her conclusions is located in the oft quoted maxim in Asia, “from similar to the same, but different all the same”, which translates the author's conviction that differences should not be allowed to generate conflict and that the next round of European Union accessions to the Strasbourg Convention must ensure that an additional guarantee in this sense is included.
Pierre Bouvier
*** PASCAL GILLIAUX: Droit(s) européens(s) à un procès équitable. Editions Bruylant (Groupe De Boeck, 39 rue des Minimes, B-1000 Brussels. Tel: (32-10) 482511 - fax: 482693 - Email: commande@deboeckservices.com - Internet: http://www.bruylant.be ). 2012, 994 pp. €175. ISBN 978-2-8027-3608-0.
Registrar at the European Union Civil Service Tribunal, Pascal Gilliaux proves with this impressive book that he is also a teacher whose legal knowledge is to be envied and, no doubt, to a certain extent feared by his students at the Université libre in Brussels and the Université de Caen - in Lower Normandy. There will in any case, with many people who will be able to use this comprehensive book, which explains the law involved in a free trial and a whole host of litigation questions. After outlining his sources, namely, the Convention for the Protection of Human Rights and Fundamental Freedoms and increasingly the law of the European Union, the author methodologically examines the fields of application at individual and material levels pertaining to this law. This involves procedural requirements, the implications of this law on the decisions themselves and the specific guarantees in criminal law, which can be drawn on to the benefit of the accused as well as the victims. In his general conclusion he indicates that this study illustrates the coexistence of two sources of law in this field but not the existence of any real conflict because the law of the European Union appears, “as a result of a common denominator between a significant number of states that are party to the Convention” for which the Court in Strasbourg draws its inspiration and subsequently develops its jurisprudence. The general scoreboard is therefore characterised by details that are drawn on in the general development of the subject area from which those working in this field can use to their advantage.
(MT)
*** HANA VAN OOIJEN: Religious Symbols in Public Functions: Unveiling State Neutrality. A Comparative Analysis of Dutch, English and French Justifications for Limiting the Freedom of Public Officials to Display Religious Symbols. Intersentia Ltd (see address attached). "School of Human Rights Research", No. 58. 2012, 335 pp. €69, £666 $97. ISBN 978-1-78068-119-1.
This book is the extension of a PhD thesis written at the Dutch Institute of Human Rights. It entirely focuses on the following question, “is the neutrality of the state in the Netherlands justified and/or does it require restrictions on the freedom of civil servants working in the legal apparatus, police and education and public education system displaying their religion or beliefs by way of different symbols? In the first part of the book, Hana van Ooijen sets the scene by illustrating that the traditional, “tolerant and pragmatic approach towards religious issues” that has prevailed in the Netherlands has given way to less consensual and more strident attitudes, particularly after the events of 11 September 2001. She also illustrates the ambiguities in the concept of the state's neutrality in the Netherlands, which are reflected, particularly, in the ban on members of the legal system and police displaying religious symbols, although teachers, however, are allowed to do so. She provides a far-reaching theoretical exploration of this concept and that of “religious freedom” and shows that both of them are characterised by their relative obscurity. She broadens here study further by including the jurisprudence of the European Court of Human Rights, as well as the situations diametrically opposed, which prevail in France and the United Kingdom. In her conclusions, Hana van Ooijen argues that the neutrality of the state in the Netherlands does not require further limitations on the freedom of religion or restrictions on civil servants.
(PBo)
*** FRANCESCA GALLI, ANNE WEYEMBERGH (Editors): EU-counter-terrorism offences. What impact on national legislation and case-law? Editions de l'Université de Bruxelles (26 av. Paul Héger, B-1000 Brussels. Tel: (32-2) 6503799 - fax: 6503794 - Email: editions@ulb.ac.be - Internet: http://www.editions-universite-bruxelles.be ). « Etudes européennes » series. 2012, 317 pp. €30. ISBN 978-2-8004-1527-7.
This book provides a very useful account of a conference organised by the European Criminal Law Academic Network and the Institute of European Studies at the Université libre in Brussels in May 2011. This conference examined the areas of competence developed by the European Union in the criminal legal arena, in the fight against terrorism. The editors of this book demonstrate the importance of verifying whether European criminal law has been appropriately implemented by member states. This is the goal that the authors assert themselves, such as Francesca Galli and Anne Weyembergh, who write that, “Each new intervention by the EU legislator should be preceded by a demonstration of the added value of the draft instrument”. The different contributions look at the way in which the framework decisions of 13 June 2002 and 28 November 2008 (contained in this volume) have been implemented and, more precisely, how they are used to evaluate the impact of introducing an EU definition of terrorism and the three new offences of provocation, training and recruiting for terrorism purposes. After providing a general assessment of the two framework decisions by Sabine Gless (University of Basel), the book is then divided into three parts. In the first part, the authors examine the interplay between these two EU instruments and national provisions, including a study of the relevant domestic case law. Nine member states are chosen in this connection: Germany, Austria, Belgium, Denmark, Spain, France, Hungary, Italy and the United Kingdom, as a representative sample given that it is important to understand the question in relation to “old” and “new” member states and countries that have experienced periods of political violence and others that have not adopted measures on this subject at a European Union level. The evaluation of the legislation and jurisprudence in these countries is carried out on the basis of a common analysis grid. The second part is shorter and exclusively focuses on the influence of harmonisation efforts to tackle terrorist offences in the sphere of European cooperation. One of the contributions on this subject is written by real past master in the subject, Gilles de Kerchove, the European antiterrorism coordinator. The final part of the book focuses on the priority given to the issue of prevention in this field.
(MT)
*** CHRISTINE DITSCHER: Europäische Beweise. Der Rahmenbeschluss über die Europäische Beweisanordnung zur Erlangung von Sachen, Schriftstücken und Daten zur Verwendung in Strafsachen. Peter Lang (1 Moosstrasse, Postfach 350, CH-2542 Pieterlen. Tel: (41-32) 3761717 - fax: 3761727 - Email: info@peterlang.com - Internet: http://www.peterlang.com ). « Frankfurter kriminalwissenschaftliche Studien » series, No. 135. 2012, 389 pp. €63.40. ISBN 978-3-631-63156-0.
This book provides a presentation of the 2008 framework decision on the , “European warrant to obtain evidence from objects, documents and data, in view of their use as part of criminal proceedings”. Christine Ditscher first of all illustrates the European reference framework surrounding this decision and then examines the European treaties. This is followed by an insight into the issue of protecting fundamental rights and procedural guarantees, as well as the principles of criminal and procedural law. She then provides a more detailed analysis of the framework decision and illustrates the international legal mutual assistance in the framework of criminal procedures. She provides an analysis of the legal basis and contents in the framework decision and looks at the question of its transposition into German law. After exploring some of the national differences existing in the pursuit of obtaining and using proof, Christine Ditscher brings her book to a close exploring the possibility of European evidence becoming part of common European procedural law.
(SH)
*** MONIKA KÖNIG: Die Anwendbarkeit des forum non conveniens im deutschen und europäischen Zivilverfahrensrecht. Peter Lang (see address attached). « Schriften zum internationalen Privat- und Verfahrensrecht » series, No.13. 2012, 195 pp. €42. ISBN 978-3-631-63126-3.
In this book, Monika König analyses the forum non conveniens (FNC) rule applied in countries of common law, with regard to civil procedures. This rule allows judges from one country not to have to make a decision in a question of litigation and transfer the issue in question to their colleagues in another country, if they believe them more competent to examine it. The book is divided into three chapters. The first focuses on the, FNC rule in Anglo-Saxon law and the author explains different developments that have occurred, as well as its origins. The second chapter looks at the influences of the FNC rule in German law. In this chapter, the author looks at the possibilities of its application into European law. Article 15 of the EU Regulation No. 2201/2003 on scope, recognition and the execution of decisions in matrimonial law and parental responsibility include, “a referral to a jurisdiction that has greater knowledge in the case in question”. This article is strongly influenced by the FNC rule. Nonetheless, in a ruling in 2005, the European Court of Justice rejected the application of this rule in a specific case. Could this decision ultimately put an end to any possibility of using the forum non conveniens rule in European law and civil proceedings? The author provides a number of responses to this important question.
(SH)