Stephanie 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.
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.
A similar divergence between the jurisprudence of the ECtHR and HRC can be observed in cases concerning the wearing of the keski in State Schools. Drawing on its jurisprudence in the hijab cases, in Jasvir Singh v France and Ranjit Singh v France, the ECtHR found that the expulsion of the applicants from State Schools was not disproportionate to the aim pursued: the protection of the rights and freedoms of others through the pursuit of secularist policies in State schools. As in the hijab cases, the ECtHR did not find it necessary to consider whether the individual applicants posed a threat to ‘the rights and freedoms of others’, as the measures taken to pursue the constitutional principle of laïcité fell within the State’s margin of appreciation.
In Bikramjit Singh v France the HRC also considered the legitimacy of the prohibition on wearing religious symbols in states schools on the grounds of public order and to uphold ‘the constitutional principle of secularism (laïcité)’ (para 8.2). The HRC was, similarly to the ECtHR, willing to acknowledge the value of secularism: ‘the principle of secularism (laïcité), is itself a means by which a State party may seek to protect the religious freedom of all its population’ (para 8.6). However, it was ‘of the view that the State party has not furnished compelling evidence that by wearing his keski the author would have posed a threat to the rights and freedoms of other pupils or to order at the school’ (para 8.7). In particular, the penalty of expulsion from school was considered to be disproportionate and not based on the conduct of the applicant himself (para 8.7). Thus, the HRC was not willing to accept that the restriction on the applicant’s rights was justified by the pursuit of secularism alone.
In direct contrast to the ECtHR, the HRC has insisted upon balancing ‘the sacrifice of those persons’ rights’ against the legitimacy of the State’s justification for limiting religious symbols (Bikramjit Singh v France para 8.7). By considering the threat posed by the individual applicant, as opposed to basing its decisions on ‘mere worries or fears’ asserted by the State, (Şahin v Turkey, Judge Tulkens dissenting opinion), the HRC has been able to examine whether the restriction of the applicant’s freedom of religion is proportionate to the aim pursued (Bikramjit Singh v France para 8.7). Furthermore, ‘secularism’ as a constitutional principle has not been accepted by the HRC to be sufficient to justify the limitation of the right to manifest religion in State institutions.
By deferring to the State’s margin of appreciation in cases concerning the right to manifest religion by wearing religious symbols, the ECtHR has accepted restrictions on freedom of religion that are impermissible under the ICCPR. By insufficiently carrying out the proportionality analysis the ECtHR has shifted the burden of proof away from the State and on to the applicant to prove that the restriction of their freedom of religion was unnecessary. However, as the threat posed by the individual applicant to secularism has been considered to be immaterial by the ECtHR, applicants have been unable to evidence that the restriction of their rights was disproportionate.
The divergence between the case law of the ECtHR and HRC highlights the danger that the margin of appreciation, when construed too widely, poses to the protection of fundamental rights and freedoms. The ECtHR has arguably construed the permissible limitations of freedom of religion in a manner that permits the restriction of freedom of religion of minorities by reference to the majority’s ‘worries or fears’ and ideological beliefs. In contrast, the HRC has continued to use the freedom of religion to protect those most vulnerable to rights violations, namely, persons belonging to minorities. If States are not to fall foul of the HRC’s jurisprudence, restrictions on article 18 ICCPR must be justified by reference to the behaviour of the applicant and proportionate to the aim pursued.