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Home Articles posted by Stephanie Berry

The UN Human Rights Committee Disagrees with the European Court of Human Rights Again: The Right to Manifest Religion by Wearing a Burqa

Published on January 3, 2019        Author: 

It is perhaps unsurprising to observers of the UN Human Rights Committee’s (HRC) jurisprudence that in the recent decisions of Yaker v France and Hebbadi v France, the HRC came to the opposite conclusion to the European Court of Human Rights (ECtHR) regarding the compatibility of the so-called ‘French burqa ban’ with the right to manifest religion. In SAS v France, the ECtHR had found that although the French Loi no 2010–1192 interdisant la dissimulation du visage dans l’espace public of 11 October 2010, JO 12 October 2010 (herein after the ‘burqa ban’) interfered with the right to manifest religion, it did not constitute a violation of article 9 European Convention on Human Rights (ECHR) as it pursued the legitimate aim of ‘living together’ and fell within the State’s margin of appreciation (see my earlier post on this case). In contrast, in Yaker and Hebaddi, the HRC found that the same law violated not only article 18, the right to thought, conscience and religion, but also article 26 of the International Covenant on Civil and Political Rights (ICCPR), the right to equality before the law.

The HRC’s freedom of religion or belief jurisprudence has consistently diverged from that of the ECtHR when the right to manifest religion by wearing religious clothing is at issue. Both bodies have heard directly analogous cases, but while the HRC has found that restrictions on religious clothing justified by reference to either secularism or public order violate article 18 ICCPR, the ECtHR has deferred to the State’s margin of appreciation and declined to find a violation (see my earlier post on this blog). As a result, the HRC’s decisions in Yaker and Hebbadi were not entirely unexpected, especially as in its Concluding Observations on the fifth periodic report of France in 2015, the HRC had expressed ‘the view that these laws [including the burqa ban] infringe the freedom to express one’s religion or belief and that they have a disproportionate impact on members of specific religions and on girls’ (para 22). However, its decision in these cases remains noteworthy as a result of: its consideration of ‘living together’ as a legitimate aim under the article 18(3) ICCPR limitations clause; the HRC’s recognition that the burqa ban constituted intersectional discrimination; and the nuanced approach adopted to the gender equality argument. The analysis here will focus on Yaker, although the HRC’s reasoning in both cases is identical. Read the rest of this entry…

 

SAS v France: Does Anything Remain of the Right to Manifest Religion?

Published on July 2, 2014        Author: 

Niqab23The finding by the European Court of Human Rights (ECtHR) in SAS v France that the so-called ‘French burqa ban’ did not violate the European Convention on Human Rights (ECHR) will not surprise many in the field of human rights. However, the judgment itself contains a number of developments and departures from the Court’s previous jurisprudence that warrant further consideration. In particular, the conclusion that the right to manifest religion may be restricted on the ground of ‘living together’ presents a worrying development, if this right is to have any practical meaning. (photo credit)

In SAS v France, the applicant challenged the French Loi no 2010–1192 interdisant la dissimulation du visage dans l’espace public of 11 October 2010, JO 12 October 2010 (herein after the ‘burqa ban’), which prohibits the covering of the face in public. The case differs from previous cases concerning the right of Muslim women to manifest religion by wearing religious attire, as the law imposed a blanket ban which extended to the social sphere. The applicant argued that by preventing her from wearing the burqa the ban violated her rights under articles 3, 8, 9, 10, 11 and 14 ECHR. The ECtHR completely dismissed her claims under articles 3, 10 and 11 ECHR, and focused its attention on articles 8, 9 and 14 ECHR, with a notable emphasis on article 9, the right to freedom of religion or belief.

The ECtHR’s judgment in SAS v France, for the most part, is balanced, well-reasoned and provides a thorough consideration of the French government’s justifications for the restriction of the applicant’s right to manifest her religion: public safety and ‘respect for the minimum set of values of an open and democratic society’. The latter category comprises three separate elements: gender equality, human dignity and ‘respect for the minimum requirements of life in society’ or ‘living together’. Whilst public safety is found within articles 8(2) and 9(2) ECHR, as noted by the ECtHR,  ‘respect for the minimum set of values of an open and democratic society’ does not correspond with any of the permissible limitations on article 8 and 9 ECHR (paras 116-7). Consequently, the ECtHR interpreted this justification as falling with the broad ‘protection of the rights and freedoms of others’ (para 117).

While the ECtHR established that the ‘burqa ban’ was prescribed by law (para 112), it did not accept that the ban pursued the ‘legitimate aims’ of gender equality and human dignity (paras 119-120). Specifically, in the context of gender equality, the ECtHR took ‘the view, … that a State Party cannot invoke gender equality in order to ban a practice that is defended by women – such as the applicant – in the context of the exercise of the rights enshrined in those provisions’ (para 119). This marks a significant departure from the ECtHR’s jurisprudence in the hijab cases. InDahlab v Switzerlandthe ECtHR had held that the hijab ‘appears to be imposed on women by a precept which is laid down in the Koran and which … is hard to square with the principle of gender equality’ . However, this approach was the subject of criticism, most notably by Judge Tulkens in her dissenting opinion in Leyla Şahın v Turkey:

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. (para 12)

Read the rest of this entry…

 

Eroding Religious Freedom Step by Step: France and the Baby Loup Case

Published on July 1, 2014        Author: 

cour de cassationLast Wednesday, the French Cour de Cassation (pictured left), in the Baby Loup case, permitted yet another restriction to be placed on the right to manifest religion in France.  The applicant had been fired from her job at Baby Loup, a private crèche and nursery, for violating the organisation’s rules of procedure. By wearing the hijab, the applicant purportedly breached the rule that

the principle of freedom of conscience and of religion of each staff member may not impede respect for the principles of laïcité [secularism] and neutrality that apply in the exercise of developmental activities, either on the premises of the crèche or during outside activities in which staff accompany children enrolled in the crèche.

The applicant will now take the case to the European Court of Human Rights (ECtHR). The decision of the Cour de Cassation in Baby Loup is made all the more significant by the pending judgment in SAS v France, due to be handed down by the ECtHR today. Will the ECtHR continue to permit the creeping erosion of the right to manifest religion (article 9 European Convention of Human Rights (ECHR)) by deferring to the State’s margin of appreciation?

The decision of the Cour de Cassation was based on Articles L. 1121-1 and L. 1321-3 of France’s Labour Code, which require any restrictions on an employee’s freedom of religion to be proportionate and justified by the nature of the employment. The Courtfound that the private nursery could not justify the restriction of the freedom of religion of the employee by direct reference to the principle of laïcité, as the principle applies only to public bodies. Nonetheless, it was willing to accept that the adoption of the principle of laïcité in the organisation’s rules of procedure was designed to protect children and to promote gender equality, rather than promoting and defending laïcité as a religious, political or philosophical belief. Consequently, the Cour de Cassation found that the restriction on the applicant’s freedom of religion was permissible.

The ECtHR is also likely to consider whether the freedom of religion of the applicant in Baby Loup can be justified by either the principle of secularism or ‘the rights and freedoms of others’ (article 9(2) ECHR). The recent cases of Ahmet Arslan and others v Turkey and Eweida and others v United Kingdom are directly relevantas previous ECtHR cases addressing the restriction of the right to manifest religion in the private sphere.

Ahmet Arslan concerned the arrest of members of the Aczimendi tankaı religious community for wearing religious clothing in public. The ECtHR found that the restrictions placed on the community by the authorities could not be justified by reference to the principle of secularism as the applicants were not State officials (para 48) and were not wearing religious clothing in a State institution such as a State school (para 49). Thus, Ahmet Arslan limits the circumstances in which States may justify the restriction of freedom of religion on the grounds of the principle of secularism to public officials and institutions. Consequently, it seems unlikely that France will be able to rely on the principle of laïcité in the Baby Loup case, as the nursery was a private organisation. Read the rest of this entry…

 

‘National Minority’ Status for the Cornish – What Took So Long?

Published on May 8, 2014        Author: 

Cornish_National_TartanMedia reports of the UK government’s recent decision to grant ‘national minority’ status to the Cornish minority have questioned why such status is necessary and how Cornwall differs from other regions of the UK. The Cornish are one of the constituent peoples of the British Isles, similarly to the Welsh and Scottish.  (The Cornish national tartan is pictured left, credit.) However, unlike other Celtic minorities in the UK, the Cornish were not officially recognised as a ‘national minority’, despite attempts to be recognised under the Council of Europe’s Framework Convention for the Protection of National Minorities (FCNM) since 1999 (Opinion on the United Kingdom ACFC/INF/OP/I(2002)006 para 16). In addition to a distinct language, which has been traced back to the Ninth Century, the Cornish also have a unique culture, including folklore and traditional dress, which distinguishes them from the rest of England. It is, thus, not Cornwall that has been granted ‘national minority’ status, but those inhabitants of Cornwall whose culture differs from the rest of the UK on the basis of their association with the Cornish minority. Rather than asking why the Cornish minority requires ‘national minority’ status, the more interesting question is why they weren’t recognised in the first place.

It has long been recognised in international law that ‘the existence of communities is a question of fact; it is not a question of law’ (Greco-Bulgarian Communities Case PCIJ Series B No 17 Advisory Opinion of July 31 1930, 22). Nonetheless, the recent recognition by the UK government of the ‘national minority’ status of the Cornish is a step forward if the identity of this minority group is to be preserved.  Even though States are not permitted to deny the existence of a minority to avoid international obligations, in practice such minorities must be recognised by States if their claims to the protection offered by minority rights standards are to be realised.

No definition of a minority has been agreed under international law; however, the term ‘national minority’ has a traditional usage which is linked to the League of Nations minority protection regime in the inter-war period. ‘National minorities’ have, therefore, been understood to comprise traditional or autochthonous minorities, who have traditionally inhabited a specific area, have been present in the State since the State’s borders were formed and have an identity which differs from the majority population in terms of culture, language and/or religion. A number of States have adopted the traditional, restrictive, interpretation of the term ‘national minority’ to define the scope of application of the FCNM. On the basis of their historic connection to Cornwall and distinct identity which differentiates them from the rest of the English population, the Cornish minority would clearly satisfy the traditional understanding of the term ‘national minority’.

The UK was able to avoid recognising the Cornish minority under the FCNM as a result of the failure of States to agree a definition of the scope of application of the instrument at the time of drafting. States are granted a margin of appreciation to interpret the scope of the term ‘national minority’ provided that the definition adopted satisfies the good faith requirement (article 2 FCNM).  Nonetheless, the Advisory Committee to the FCNM (AC-FCNM) has consistently stressed that  ‘the implementation of the Framework Convention should not be a source of arbitrary or unjustified distinctions’ (‘Opinion on the United Kingdom’ para 12) and has encouraged States parties to adopt a wide interpretation of the FCNM’s scope of application. Read the rest of this entry…

Filed under: EJIL Analysis
 

Freedom of Religion and Religious Symbols: Same Right – Different Interpretation?

Published on October 10, 2013        Author: 

stephanie berryStephanie E. Berry is Lecturer in Public Law at the University of Sussex.

As the debate over the wearing of religious attire in State institutions in Western Europe has reignited over previous weeks, it is pertinent to consider the protection provided under international law to those who wish to exercise this element of freedom of religion. As has been well documented, the European Court of Human Rights (ECtHR) has been willing to accept restrictions on the right to manifest religion by wearing religious attire under article 9(2) of the European Convention on Human Rights on the grounds of the ‘rights and freedoms of others’ (specifically gender equality, pluralism and tolerance and State neutrality) (see, for example, Dahlab v Switzerland; Şahin v Turkey) and public order and safety (Phull v France; El-Morsli v France). However, the wide margin of appreciation afforded to States and the failure of the ECtHR to probe whether restrictions on the right to manifest religion are proportionate have been the subject of criticism.

Until recently the right to manifest religion by wearing religious attire under the International Covenant on Civil and Political Rights (ICCPR) had rarely been considered by the UN Human Rights Committee (HRC) (see Singh Bhinder v Canada and Hudoyberganova v Uzbekistan). Notably, however, the HRC does not recognise that States have a margin of appreciation. Thus, in two recent cases concerning the right to manifest the Sikh religion by wearing religious attire, a significant divergence between the approach of the HRC and the ECtHR can be observed.

800px-Sikhs_on_the_move!In Mann Singh v France and Ranjit Singh v France the ECtHR and HRC, respectively, considered the right of a Sikh man to manifest his religion by wearing a turban on a photograph affixed to an identification document. In Mann Singh v France, the ECtHR acknowledged that the requirement that the applicant appear without his turban in the photograph affixed to his driving license constituted an interference with the right to manifest religion. However, the ECtHR accepted that the restriction was justified on the grounds of ‘public safety’ and ‘public order’ under article 9(2) ECHR. Notably, the ECtHR deferred to the discretion of the State and, thus, did not examine the legitimacy of the State’s assertion that the removal of the turban was necessary to allow the identification of the driver and to avoid fraud. (photo credit)

Similarly, in Ranjit Singh v France the HRC considered the requirement that Sikhs remove their turbans in photographs affixed to residents permits, (paras 2.12-2.2) a requirement again justified by France on the grounds of public order and public safety (para 5.3) under article 18(3) ICCPR. Although the HRC recognised that the aim of the restriction was legitimate, (para 8.4), in direct contrast to the ECtHR, the HRC found:

 [T]hat the State party has not explained why the wearing of a Sikh turban covering the top of the head and a portion of the forehead but leaving the rest of the face clearly visible would make it more difficult to identify the author than if he were to appear bareheaded, since he wears his turban at all times. Nor has the State party explained how, specifically, identity photographs in which people appear bareheaded help to avert the risk of fraud or falsification of residence permits. (para 8.4)

The HRC continued to consider the potential for this interference to result in continuing violations of the applicant’s rights ‘because he would always appear without his religious head covering in the identity photograph and could therefore be compelled to remove his turban during identity checks’ (para 8.4). By exercising a higher level of scrutiny of the justifications given by the State for the restriction of the right to manifest religion, than the ECtHR in Mann Singh v France, the HRC was able to assess the proportionality of the interference and found a violation of freedom of religion. Read the rest of this entry…