CASE OF DOGRU v. FRANCE
No violation of Art. 9
Isabelle Berro-Lefèvre;Jean-Paul Costa;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
5. The applicant was born in 1987 and lives in Flers. 6. The applicant, a Muslim aged eleven at the material time, was enrolled in the first year of a state secondary school in Flers for the academic year 1998-1999. From January 1999 onwards she wore a headscarf to school. 7. On seven occasions in January 1999 the applicant went to physical education and sports classes wearing her headscarf and refused to take it off despite repeated requests to do so by her teacher, who explained that wearing a headscarf was incompatible with physical education classes. The teacher sent two reports to the headmaster dated 22 January and 8 February 1999. 8. At a meeting on 11 February 1999 the school's pupil discipline committee decided to expel the applicant from the school for breaching the duty of assiduity by failing to participate actively in physical education and sports classes. 9. The applicant's parents appealed against that decision to the appeal panel. 10. In a decision of 17 March 1999 the Director of Education for Caen upheld the decision of the school's pupil discipline committee, after obtaining the opinion of the appeal panel which was based on four grounds: i) the duty of assiduity (as defined in section 10 of the Education (General Principles) Act – Law no. 89-486 of 10 July 1989; Article 3-5 of Decree no. 85-924 of 30 August 1985 on Local State Schools; and the school's internal rules); ii) the provisions of the school's internal rules stipulating that pupils must wear clothing that “complies with the health and safety rules” and attend physical education and sports classes in their sports clothes; iii) a memorandum (no. 94-116 of 9 March 1994) on pupils' safety during school activities, which specified that “rigorous compliance with the rules governing teaching staff's liability shall not eclipse the very broad personal discretion left to the individual teacher when dealing with actual concrete situations” and that “while managing his or her class the teacher must be capable of identifying and putting a stop to any behaviour on the part of pupils – other than sudden or unforeseeable conduct – that may present a danger”; iv) a decision of the Conseil d'Etat dated 10 March 1995 in which it had held that wearing a headscarf as a sign of religious affiliation was incompatible with the proper conduct of physical education and sports classes. 11. The applicant indicated that she subsequently took correspondence courses in order to continue her school studies. 12. On 28 April 1999 the applicant's parents, acting on their own behalf and as their minor daughter's legal guardians, applied to the Caen Administrative Court to have the decision of the Director of Education set aside. 13. On 5 October 1999 the court rejected their application. It considered that, by attending physical education and sports classes in dress that would not enable her to take part in the classes in question, the applicant had failed to comply with the duty to attend classes regularly. It also found that the applicant's attitude had created an atmosphere of tension within the school and that on the basis of all the factors involved her expulsion from the school had been justified, regardless of the proposal she had made at the end of January to wear a hat instead of her headscarf. 14. The applicant's parents appealed against that judgment. On 31 July 2003 the Nantes Administrative Court of Appeal dismissed their appeal, on the same grounds as the lower court, finding that the applicant, by behaving as she had done, had overstepped the limits of the right to express and manifest her religious beliefs on the school premises. 15. The applicant's parents lodged an appeal on points of law with the Conseil d'Etat, relying, inter alia, on their daughter's right to freedom of conscience and expression. 16. On 29 December 2004 the Conseil d'Etat declared the appeal inadmissible. 17. In France, the exercise of religious freedom in public society, and more particularly the issue of wearing religious signs at school, is directly linked to the principle of secularism on which the French Republic was founded. 18. Arising out of a long French tradition, the concept of secularism has its origins in the Declaration of the Rights of Man and of the Citizen of 1789, Article 10 of which provides that “No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.” It also appears in the key Education Acts of 1882 and 1886, which introduced state primary education on a compulsory and secular basis. The real keystone of French secularism, however, is the Act of 9 December 1905, known as the Law on the Separation between Church and State, which marked the end of a long conflict between the republicans, born of the French Revolution, and the Catholic Church. Section 1 provides: “The Republic shall ensure the freedom of conscience. It shall guarantee free participation in religious worship, subject only to the restrictions laid down hereinafter in the interest of public order.” The principle of separation is affirmed in section 2 of the Act: “the Republic may not recognise, pay stipends to or subsidise any religious denomination.” A number of consequences flow from this “secular pact” both for public services and users. It implies an acknowledgement of religious pluralism and State neutrality towards religions. In return for protection of his or her freedom of religion, the citizen must respect the public arena that is shared by all. The principle was then enshrined in the Preamble to the Constitution of 27 October 1946, which has had constitutional status since a decision of the Constitutional Council of 15 January 1975, which states: “The Nation guarantees equal access for children and adults to instruction, vocational training and culture. The provision of free, public and secular education at all levels is a duty of the State.” Lastly, the principle acquired actual constitutional status in Article 1 of the Constitution of 4 October 1958, which provides: “France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs.” 19. From the 1980s the French secular model was confronted with the integration of Muslims into society, particularly in schools. 20. The year 1989 saw the first of the “Islamic headscarf” cases. At the beginning of the school year a number of incidents occurred in secondary schools and in particular in Creil Lower Secondary School, in the département of the Oise, when three pupils were suspended for refusing to remove their headscarf despite being requested to do so by the teaching staff and the principal of the school. The case quickly became a highly topical issue. As there was no clear legal answer, and in accordance with a request from the Minister for Education, the Conseil d'Etat, in an advisory opinion of 27 November 1989 (see paragraph 26 below), stated the position that should be adopted when pupils manifested their religion. 21. Some ten years later more and more issues relating to the headscarf had arisen and the advisory opinion does not appear to have provided a lasting solution to the difficulties. According to a report prepared for the Minister for Education in July 2005, “the matter appears to have taken on considerable proportions because having started with three headscarves in Creil in 1989, the Minister referred to 3,000 such cases when addressing the Senate in 1994.” In France, the troubles have given rise to various forms of collective mobilisation regarding the question of the place of Islam in Republican society. It is in this context that, on 1 July 2003, the President of the Republic instructed a commission to study the application of the principle of secularism in the Republic. That commission, known as the “Stasi commission”, after the name of its chairman, produced a report for the President of the Republic on 11 December 2003. The picture it presented of the threat to secularism bordered on the alarming. It said “instances of behaviour and conduct that run counter to the principle of secularism are on in the increase, particularly in public society. ... The reasons for the deterioration in the situation ... [are the] difficulties in integrating experienced by those who have arrived in France during the past decades, the living conditions in many suburbs of our towns, unemployment, the feeling experienced by many people living in France that they are the subject of discrimination, or are even being driven out of the national community; these people explain that they thus lend an ear to those who incite them to fight what we call the values of the Republic. .... In this context it is natural that many of our fellow citizens demand the restoration of Republican authority and especially in schools. It is with these threats in mind and in the light of the values of our Republic that we have formulated the proposals set out in this report. ... [Regarding the headscarf, the report states that] for the school community ... the visibility of a religious sign is perceived by many as contrary to the role of school, which should remain a neutral forum and a place where the development of critical faculties is encouraged. It also infringes the principles and values that schools are there to teach, in particular, equality between men and women”. 22. It is on the basis of these proposals that the Act of 15 March 2004 was enacted (see paragraph 30 below). 23. Section 10 of the Act of 10 July 1989 provides: “Pupils must comply with the duties inherent in their studies. These include assiduity at school and compliance with the rules and community life of the school. In keeping with the principle of respect for pluralism and the principle that State education must be neutral, in lower and upper secondary schools pupils shall have freedom of information and freedom of expression. The exercise of these freedoms shall not interfere with teaching activities.” 24. Article 3-5 of the Decree of 30 August 1985 concerning local state educational establishments provides: “The duty of assiduity referred to in Article L. 511-1 of the Education Code requires pupils to adhere to the teaching periods determined in the school timetable. This applies to compulsory classes and to any optional classes in which pupils have enrolled. Pupils shall perform the written and oral work requested of them by their teachers, respect the content of the curriculum and sit any tests that are set them. Pupils cannot refuse to undergo health tests or check-ups organised for them. The school's internal rules shall specify the manner in which this Article is implemented.” 25. The internal rules of Jean Monnet Lower Secondary School in force at the material time provided: “ ... I c) Attendance. ... Any pupil who misses a lesson or study period without prior authorisation or leaves the school grounds without permission shall be punished for serious misconduct; ... II b) School dress. ... All pupils are required to dress discreetly and decently and in accordance with the rules of health and safety. ... Discreet signs manifesting the pupil's personal beliefs, such as their religious convictions, shall be accepted in the establishment, but conspicuous signs which are in themselves of proselytising or discriminatory effect shall be prohibited; ... IV d) All pupils must attend P.E. classes in sports clothes.” 26. On 27 November 1989, at the request of the Minister for Education, the Conseil d'Etat, sitting in plenary, gave a ruling on the compatibility with the principle of secularism of wearing signs at school indicating affiliation to a religious community. It gave the following opinion: “ ... 1. ... The principle of secularism in state education, which is one aspect of the secular nature of the State and the principle that all public services must be neutral, requires teachers and the school curriculum to respect both this neutrality and pupils' freedom of conscience. In accordance with the principles laid down in these same laws and with France's international commitments, it prohibits any discrimination in access to education on grounds of a pupil's religious convictions or beliefs. The freedom thus conferred on pupils includes the right to express and manifest their religious beliefs on the school premises, in compliance with the requirement of respect for pluralism and the freedom of others, without interfering with teaching activities, the content of the curriculum or the requirement of assiduity. The exercise of that freedom can be restricted if it hinders the public education service in the role devolved onto it by the legislation. In addition to providing the means whereby children can acquire a culture and preparing them for professional life and their responsibilities as men and citizens, that role consists of contributing to the development of the pupil's personality, inculcating respect for the individual, his or her origins and differences, and securing and promoting equality between men and women. It follows from what has just been said that pupils wearing signs in schools by which they manifest their affiliation to a particular religion is not in itself incompatible with the principle of secularism in so far as it constitutes the exercise of the freedom of expression and manifestation of religious beliefs, but that this freedom should not allow pupils to display signs of religious affiliation, which, inherently, in the circumstances in which they are worn, individually or collectively, or conspicuously or as a means of protest, might constitute a form of pressure, provocation, proselytism or propaganda, undermine the dignity or freedom of the pupil or other members of the educational community, compromise their health or safety, disrupt the conduct of teaching activities and the educational role of the teachers, or, lastly, interfere with order in the school or the normal functioning of the public service. 2. The wearing of signs of religious affiliation in schools may, if necessary, be subject to rules designed to implement the principles set out above... In secondary schools these rules fall within the province of the board of governors of the school which, ..., adopts, subject to scrutiny of the lawfulness thereof, the school's internal rules... 3. The disciplinary authorities shall decide, subject to the scrutiny of the administrative courts, whether the wearing by a pupil, on the premises of a state school or other educational establishment, of a sign of religious affiliation in breach of one of the conditions posited in point 1 of this opinion or the school's internal rules constitutes a breach justifying the institution of disciplinary proceedings and the application, after compliance with the safeguards instituted by such proceedings and the rights of the defence, of one of the penalties provided for in the applicable provisions, one of which may be suspension from the school. Suspension from a primary or secondary school is an option, despite the fact that education is compulsory, provided that the child can be educated, ..., either in a state school or a freely accessible school or in the family by the parents, or one of them, or any other person of their choice, and, in particular, that the pupil can be enrolled in a state centre for correspondence courses .... ...” 27. On 12 December 1989 a circular by the Minister for Education, entitled “Secularism, wearing of religious signs by pupils and compulsory education”, was sent to the directors of education, school inspectors and school principals. The relevant parts read as follows: “Secularism, a constitutional principle of the Republic, is one of the cornerstones of state education. At school, like anywhere else, an individual's religious beliefs are a matter of individual conscience and therefore free choice. At school, however, where young people mix without any discrimination, the exercise of the freedom of conscience, in keeping with the requirement of respect for pluralism and the principle that the public service shall be neutral, requires that the entire educational community be shielded from any ideological or religious pressure. Having regard to a number of recent events, it is my intention, in compliance with the requirement that each and everyone's rights must be respected, to prevent infringements of the principle of secularism. ... The controversies caused by certain young girls of the Islamic faith wearing the headscarf have prompted me, in view of the difficulties of interpretation of the relevant law, to refer the matter to the Conseil d'Etat. ... Where a conflict arises regarding the wearing of religious signs, I would ask you and your teaching staff to adopt the following approach. A dialogue must immediately be sought with the pupil and his or her parents so that, in the interests of the pupil and out of concern for the proper functioning of the school, the pupil agrees to stop wearing the sign(s) in question. ... Accordingly, pupils must refrain from displaying any conspicuous sign, whether in their dress or otherwise, that promotes a religious belief. Any proselytising behaviour that goes beyond mere religious beliefs shall be proscribed... A pupil's dress must not in any circumstances prevent him or her from engaging in the normal way in the exercises inherent in physical education and sports classes or tutorials or workshops organised in certain subjects. Likewise, any dress that is liable to hinder the running of a class or the proper conduct of a lesson shall be banned. Furthermore, the health and safety requirements shall be unequivocally binding on all pupils. Pupils must dress in such a way that they pose no danger to themselves or others in schools. ... There shall be no interference with any teaching activities, the content of the curriculum or the pupils' duty to attend classes regularly. The freedom of expression conferred on pupils shall not contravene these obligations. ... Pupils must follow all lessons corresponding to their school level. ... Accordingly, a pupil cannot in any circumstances refuse to study certain parts of the school curriculum or exempt him or herself from certain lessons. ... Anyone who fails to comply with these obligations shall be liable to penalties.” 28. On 20 September 1994 a further circular by the Minister for Education specified a number of points regarding the wearing of religious signs. The relevant parts were worded as follows: “For a number of years now many incidents have been occurring in schools on the occasion of ostentatious demonstrations of affiliation to a particular religion or community. School principals and teachers have repeatedly expressed their desire for clear instructions.... ... there is an unacceptable presence, in ever growing numbers, of signs so ostentatious that their signification serves precisely to distance certain pupils from the school's common rules of conduct. Such signs are inherently of proselytising effect, especially if certain lessons or disciplines are challenged as a result, pupils' safety is jeopardised or the principle of coexistence at school is undermined. I therefore ask you to propose to the boards of governors that, when drafting the internal rules, they impose a ban on such conspicuous signs, while remaining mindful that the presence of more discreet signs that merely denote an attachment to a personal belief cannot be subject to the same restrictions, as has been observed by the Conseil d'Etat and in the case-law of the administrative courts.” 29. Since its opinion of 1989 the Conseil d'Etat has had an opportunity to rule in its judicial capacity and specify the scope of that opinion. It has, for example, annulled the internal rules of schools that have imposed a strict ban on the wearing of any distinctive religious sign in classes or on the school premises on the grounds that the terms used were too general (2 November 1992, no. 130394, Kehrouaa, and 14 March 1994, no. 145656, Melles Yilmaz). Likewise, penalties for merely wearing a headscarf in a school cannot be upheld if it is not established that the behaviour of the pupil in question amounted to an act of pressure or proselytism or interfered with public order in the school (27 November 1996, no. 169522, Mlle Saglamer, and 2 April 1997, no. 173130, époux Mehila). The administrative courts have, however, upheld expulsions from school based on failure to comply with the duty of assiduity, such as a pupil's refusal to remove her veil during physical education and sports classes (10 March 1995, no. 159981, époux Aoukili, and 20 October 1999, no. 181486, Aït Ahmad) or refusal to attend such classes (27 November 1996, no. 170209, Chedouane and Wissaadane; no. 170210, Atouf; and 15 January 1997, no. 172937 Aït Maskour and Others). 30. On 15 March 2004 Parliament enacted Law no. 2004-228, known as the Law “on secularism”, regulating, in accordance with the principle of secularism, the wearing of signs or dress manifesting a religious affiliation in State primary and secondary schools. The legislation inserted a new Article L. 141-5-1 in the Education Code which provides: “In State primary and secondary schools, the wearing of signs or dress by which pupils overtly manifest a religious affiliation is prohibited. The school rules shall state that the institution of disciplinary proceedings shall be preceded by dialogue with the pupil.” 31. As indicated in the circular of 18 May 2004, that Act concerns only “... signs ..., such as the Islamic headscarf, however named, the kippa or a cross that is manifestly oversized, which make the wearer's religious affiliation immediately identifiable.” 32. According to the report on the application of the Law (see paragraph 21 above), a total of 639 religious signs were recorded in 2004-2005. That total of 639 is less than 50% of the signs recorded the year before. In 96 cases pupils opted for alternative solutions to the pupil discipline committee (enrolment in a private school, correspondence classes) and in 47 cases the pupil was suspended. The report states that the remaining pupils decided to remove the religious sign in question. At the start of the school year 2005-2006, no incident of note was recorded. It has not, however, been possible to obtain relevant official statistics for the school years after 2004.