The case of Naima Mezoud v. France. Views of the Human Rights Committee of March 14, 2022. Communication No. 2921/2016.
In 2016, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to France.
In the Committee's view, the author's prohibition to attend advanced training courses in a headscarf constituted a restriction on her freedom of religion, in violation of article 18 of the Covenant. The Committee also concluded that the French courts' application of legal provisions to the author, as a Muslim woman deliberately wearing a headscarf, constituted differential treatment. Having established that such a prohibition was not provided for by law and was not aimed at achieving any legitimate purpose under the Covenant, the Committee concluded: such differential treatment was not aimed at achieving a legitimate purpose in compliance with the provisions of the Covenant and did not meet the criteria of reasonableness and objectivity. The Committee concluded that the refusal to allow the author to attend her studies if she wore a headscarf constituted cross-discrimination on the grounds of sex and religion, in violation of article 26 of the Covenant.
As seen from the text of the Considerations, the author claimed that her right to education under article 13 of the International Covenant on Economic, Social and Cultural Rights had been violated, since she had been denied access to vocational training because she professed Islam. The author also claimed that the refusal to allow her to study in a headscarf constituted a violation of her right to freely practice her religion in accordance with article 18 of the International Covenant on Civil and Political Rights. In the author's opinion, the above measures infringed on her freedom to profess her religious beliefs (paragraphs 3.1 - 3.3 of the Considerations).
Legal positions of the Committee: As indicated in paragraph 4 of the Human Rights Committee's general comment No. 22 (1993) on article 18 of the Covenant on the right to freedom of thought, conscience and religion, freedom to profess one's religion includes the wearing of distinctive clothing or headgear. He notes that the wearing of a headscarf that completely or partially conceals hair is a common practice for a large number of Muslim women, who consider it an integral part of the manifestation of their religious beliefs (paragraph 8.3 of the Considerations).
The Committee recalls that, as noted in paragraph 8 of its general comment No. 22 (1993), the provisions of article 18, paragraph 3, must be interpreted strictly: no grounds for imposing restrictions other than those specifically provided for are recognized, even if such restrictions are permitted in respect of other rights protected by the Covenant, in particular, for reasons of national security. Restrictions may be imposed only for the purposes for which they are intended, and must be directly related to the specific goal they are pursuing, and be proportionate to it. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner (paragraph 8.4 of the Considerations).
Restrictions must be provided for or established by law. The relevant norm, information about which should be available to the general public, should be formulated clearly enough to enable individuals to monitor their behavior accordingly, and should not give the persons entrusted with its implementation unlimited or extremely broad discretionary powers (paragraph 8.5 of the Considerations).
With regard to the requirement that restrictions must be considered necessary to protect public safety, order, health and morals, as well as the fundamental rights and freedoms of others, in accordance with article 18, paragraph 3, of the Covenant, the Committee recalls that, according to paragraph 8 of its general comment No. 22 (1993), restrictions must be They are directly related to the specific goal they are pursuing and be proportionate to it (paragraph 8.9 of the Considerations).
The Committee refers to its general comment No. 18 (1989) on non-discrimination, where paragraph 7 defines discrimination as any distinction, exclusion, restriction or preference based on race, colour, sex, language, religion, political or other beliefs, national or social origin, property status, birth or any other circumstance and which has the purpose or consequence of destroying or diminishing the recognition, use or exercise by all persons on an equal basis of all fundamental human rights and freedoms. The Committee recalls that a violation of article 26 of the Covenant may result from the discriminatory effects of any regulations or measures that are seemingly neutral and not aimed at discrimination. Nevertheless, any distinction based on race, skin color, sex, language, religion, political or other beliefs, national or social origin, property status, birth or other circumstance, as specified in the Covenant, does not constitute discrimination if it is based on reasonable and objective criteria and is aimed at achieving a legitimate purpose (paragraph 8.12 of the Considerations).
The Committee recalls that in one case it has already concluded that a ban on the wearing of explicit religious symbols may constitute cross-discrimination on the grounds of gender and religion. The Committee recalls that it has already expressed its concern that the aggravating effect of the Law of 15 March 2004, expressed in a sense of exclusion and marginalization among certain groups of the population, may run counter to the legitimate goals set (paragraph 8.13 of the Views).
Law No. 2004-228 of March 15, 2004, regulating, in accordance with the principle of secularism, the order of wearing signs and clothing demonstrating religious affiliation in primary, secondary and senior classes of public schools, prohibits students of public educational institutions from wearing signs clearly demonstrating religious affiliation.
CCPR/C/FRA/CO/5, paragraph 22. "The Committee expresses its concern about the restriction on the wearing of religious symbols in public educational institutions, which is qualified as "demonstrative" (Law N 2004-228), and the prohibition on hiding the face in public places (Law N 2010-1192). The Committee considers that these laws infringe on the freedom of external expression of one's religion or belief, and that they primarily infringe on the rights of persons belonging to certain religions and adolescent girls. The Committee is also concerned that the aggravating effect of these laws on the feeling of exclusion and marginalization among certain groups of the population may run counter to the objectives set (articles 18 and 26)" (paragraph 22 of the Concluding observations on the fifth periodic report of France).
The Committee's assessment of the factual circumstances of the case: it is noted that the State party did not dispute that the author's wearing of a headscarf relates to her freedom to profess her religion, and that the refusal to allow her to study in a headscarf constituted a restriction of this freedom. The Committee concluded that the ban imposed on the author was a restriction on the exercise of her right to freedom to profess her religion (paragraph 8.3 of the Views).
The Committee had to determine whether the restriction on the author's freedom to profess his religion and beliefs, provided for in article 18, paragraph 1, of the Covenant, met the criteria of article 18, paragraph 3, of the Covenant, that is, whether it was established by law and whether it was necessary to protect public safety, order, health and morals, as well as the fundamental rights and freedoms of others persons (paragraph 8.4 of the Considerations).
The Committee had to determine whether the restriction imposed on the author could be considered to be established by law in accordance with article 18, paragraph 3, of the Covenant. This leads to a formal requirement of legality, similar to the requirement contained in other articles of the Covenant (paragraph 8.5 of the Views).
In the present case, the Committee took note of the author's claim that the restriction imposed on her was not provided for by law, since the Law of 15 March 2004, according to which such a restriction was established, applied to students in primary, secondary and senior classes of public schools, but not to her. The State party acknowledged that the Law of 15 March 2004 did not apply to the author, but considered that the relevant restriction was provided for by the law contained in the opinion of the Council of State of 27 November 1989 and in its decision of 2 November 1992, in which it indicated that the exercise of freedom to profess one's religion may be restricted when it may lead to a violation of the requirements for the functioning of the organs of the State apparatus, which, according to the State Council, occurs in four cases. The Committee noted that neither the decision of the Melun Administrative Court nor the decision of the Appeals Chamber of the Paris Administrative Court mentioned the above-mentioned decision of the Council of State, although its contents were partially reproduced. The Administrative Court and the Appeals Chamber concluded that the restriction of the freedom to wear insignia, which denotes belonging to a particular religion, follows from the principle of secularism provided for in article 10 of the Declaration of Human and Civil Rights of August 26, 1789 and article 1 of the French Constitution. The Committee noted that no other directly applicable rule had been identified in the decisions in the present case (paragraph 8.6 of the Views).
"On the issue of students' freedom to profess their religion, the State Council issued an opinion on November 27, 1989, and then a decision on November 2, 1992, in which it stated that the principle of secularism presupposes "the provision of education in such a way that, on the one hand, neutrality is respected through curricula and teachers, and on the other, students are guaranteed freedom of conscience." Thus, the State Council recognizes the freedom of students to wear religious symbols, but this freedom is not absolute. This freedom should not be exercised at the expense of "teaching, curriculum and the obligation to attend classes regularly" and can therefore be restricted when it undermines the requirements for the proper functioning of the State apparatus, which, according to the Council of State, occurs in four cases:
- a) when the practice of religion constitutes an act of pressure, provocation, proselytism or propaganda;
- b) when the practice of religion may infringe on the dignity, pluralism or freedom of a student or any member of the educational community or pose a threat to their health and safety;
- c) when the practice of religion may undermine the educational process or the educational role of teachers;
(d) When the practice of religion may violate the established order in the institution or the proper functioning of the organs of the State apparatus" (paragraph 5.4 of the Considerations).
The Committee noted that the above-mentioned judicial decisions, which used the same reasoning as the decision of the Council of State of 2 November 1992, on the basis of the two above-mentioned provisions, identify situations in which freedom to profess one's religion may be restricted, and conclude that the author's case falls under one of the following these situations, namely, when the manifestation of such freedom would lead to violations in the educational process. The Committee further noted that the content of these two articles, which are norms of extremely wide application, is not sufficiently clearly formulated to enable a person to monitor his behavior accordingly or to provide sufficient guidance to persons entrusted with their implementation so that they can determine which forms of confession of their religion or The beliefs are properly limited, and which ones are not. The Committee has taken note of the information provided by the author, which has not been challenged by the State party, that the rule that appears to follow from these two provisions is interpreted differently by different persons responsible for law enforcement, since there are other educational centers similar to the one referred to in the In the present case, where the administration concluded that the applicable law grants students of advanced training courses the right to wear the Islamic hijab, as evidenced by the communication from the director of the college. Hollerith and the testimony of two women submitted by the author (paragraph 8.7 of the Views).
The Committee pointed out that article 10 of the Declaration of Human and Civil Rights of August 26, 1789 states: "No one should be harassed for their beliefs, even of a religious nature, provided that their expression does not violate public order established by law." Article 1 of the French Constitution provides: "France is an indivisible, secular, democratic and social republic." It ensures equality before the law for all citizens, regardless of origin, race or religion. She respects all faiths. Its structure is decentralized" (paragraph 8.7 of the Considerations).
The Committee concluded that neither the decisions of the Council of State referred to by the State party, nor the provisions of the French Constitution and the Declaration of Human and Civil Rights are clearly formulated enough to enable a person to monitor his behavior accordingly or to provide sufficient guidance to those entrusted with their implementation to ensure that they They could determine which forms of confession of their religion or beliefs were properly restricted, and which were not. Consequently, the Committee concluded that the restriction imposed on the author was not provided for by law within the meaning of article 18, paragraph 3, of the Covenant (paragraph 8.8 of the Views).
The Committee took note of the State party's contention that the restriction imposed on the author was aimed at achieving the legitimate goal of protecting the rights and freedoms of others and protecting public order, since this restriction was necessary for the proper functioning of the educational institution, taking into account "the coexistence in one institution of schoolchildren and persons undergoing advanced training qualifications that are subject to different rules, which creates a danger of disturbing public order." Thus, the logic was that the law applied to schoolchildren should also be applied to the author in order to avoid unrest that would disrupt the proper functioning of the educational institution. The Committee noted that the author had provided evidence, not disputed by the State party, that other girls could take advanced training courses and at the same time wear an Islamic hijab and contact high school students who were subject to the restriction imposed by the Law of 15 March 2004, and this did not lead to any violations of public order and did not interfere with the proper functioning of the relevant institution. Considering that, on the one hand, no examples of public order violations or obstruction of the proper functioning of the educational institution were cited, and, on the other hand, the Committee has already concluded, in at least one case, that the application of the Law of March 15, 2004, which in this case applies to students The fact that the author must coexist with constituted a violation of article 18 of the Covenant, the Committee concluded that it had not been demonstrated, that the restriction imposed was necessary to protect public order or the fundamental rights and freedoms of others (paragraph 8.9 of the Considerations).
The Committee concluded that the restriction imposed on the author, prohibiting her from attending advanced training courses in a headscarf, constituted a restriction on her freedom of religion in violation of article 18 of the Covenant (paragraph 8.10 of the Views).
The Committee took note of the author's claim of a violation of article 26 of the Covenant, as, in her opinion, she was denied access to her studies on grounds related to her religion and religious beliefs. The Committee has noted the State party's contention that the above-mentioned norm is not discriminatory, as it is not directed against representatives of any particular religion or gender (paragraph 8.11 of the Views).
The Committee noted that the purpose of the restriction imposed on the author was to avoid a situation of inequality with high school students by extending the Law of 15 March 2004 to her. The Committee stressed that, according to a publication by the Ministry of Public Education, the distinction between "pronounced" or "explicit" religious symbols and other symbols is most reflected in Muslim women wearing the Islamic hijab. The Committee concluded that the application of the Law of 15 March 2004 to the author as a Muslim woman deliberately wearing a headscarf constituted differential treatment (paragraph 8.13 of the Views).
The Committee had to decide whether the differential treatment of the author was aimed at achieving the legitimate purpose provided for in the Covenant and whether it met the criteria of reasonableness and objectivity. The Committee took note of the State party's contention that, although there may indeed be differences in the treatment of persons who do not wish to profess their religion or profess it in a manner consistent with the proper functioning of the institution and the maintenance of order in the institution, and persons who profess their religion in a manner incompatible with these elements, such differential treatment It is based on reasonable and objective criteria and therefore cannot be considered indirect discrimination within the meaning of article 26 of the Covenant. The Committee noted that due to such differential treatment, the author was unable to complete the refresher course she was enrolled in. Having established that such a prohibition is not provided for by law and is not aimed at achieving any legitimate purpose under the Covenant, the Committee concluded that such differential treatment was not aimed at achieving a legitimate purpose under the Covenant and did not meet the criteria of reasonableness and objectivity. The Committee concluded that the refusal to allow the author to attend her studies if she wore a headscarf constituted cross-discrimination on the grounds of sex and religion, in violation of article 26 of the Covenant (paragraph 8.14 of the Views).
The Committee's conclusions: The facts presented indicated a violation by the State party of articles 18 and 26 of the Covenant (paragraph 9 of the Views).