CASE OF EBRAHIMIAN v. FRANCE
No violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Manifest religion or belief)
Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano
5. The applicant was born in 1951 and lives in Paris. 6. The applicant was recruited on a three-month fixed-term contract, from 1 October to 31 December 1999, extended for one year from 1 January to 31 December 2000, as a contracted employee of the hospital civil service, to carry out the duties of a social assistant in the psychiatric unit of Nanterre Hospital and Social Care Centre (“CASH”) a public health establishment administered by the City of Paris. 7. On 11 December 2000 the Director of Human Resources informed the applicant that her contract would not be renewed with effect from 31 December 2000. The reason given for the decision – which had been taken following complaints by certain patients being treated at the Centre – was that the applicant refused to stop wearing her head covering. 8. On 28 December 2000, in response to a letter from the applicant alleging the illegality of the refusal to renew her contract in that it was motivated by her convictions and her affiliation to the Muslim faith, the Director of Human Resources indicated that at the meeting of 30 November 2000 which had preceded the administration’s decision, she had not been criticised for her religious beliefs, but merely reminded of the rights and duties of public employees, namely the ban on manifesting such beliefs. He continued: “I emphasised that I had been required to have a meeting with you following complaints made to Ms M., manager of the welfare and education unit, both by patients who were refusing to meet you on account of this display [of your beliefs] and by social assistants for whom it was becoming increasingly difficult to operate in this very delicate situation. It should be noted that Ms M. raised these difficulties with you and tried to persuade you not to manifest your religious beliefs, even before the complaints reached the HRD. Indeed, it was only shortly before the meeting with you on 30 November that the unit managers were officially informed of the problem created by the fact of your head covering. With regard to your head covering at the time of recruitment: as you are aware, the recruitment interview lasts, at the most, one hour. Individuals attend wearing ordinary “street” clothes, and do not necessarily have to remove their coats or scarves. The fact that your head was covered during that interview was not interpreted as a possible sign of [religious] affiliation, but simply as a form of attire. The termination of your contract has a legal basis, and does not result from a discriminatory situation.” The Director of Human Resources further reminded the applicant in this letter of the Opinion issued by the Conseil d’État on 3 May 2000. That Opinion stated that the principle of freedom of conscience, the principle of State secularism and the principle that all public services must be neutral prevented employees in the public sector from enjoying the right to manifest their religious beliefs; lastly, it pointed out that the wearing of a symbol intended to indicate their religious affiliation constituted a breach by employees of their obligations (see paragraph 26 below). 9. By an application registered on 7 February 2001, the applicant asked the Paris Administrative Court to set aside the decision of 11 December 2000. 10. By letters of 15 and 28 February 2001, the applicant was informed of the decision of the Director of Human Resources at the CASH to include her on the list of candidates for a recruitment test for social assistants and to permit her to take part. This decision was taken on the basis of the decree of 26 March 1993 granting special status to social assistants employed by State hospitals. That text stated that the social assistant’s task was to assist patients and their families who were experiencing difficulties in their dealings with the social services, by helping to draw up and implement the relevant programme in the establishment to which they were attached and also other social and educational programmes, in coordination, inter alia, with other institutions or the social services. The applicant did not take part in the recruitment test. 11. By a judgment of 17 October 2002, the Administrative Court held that the decision not to renew the contract had been compatible with the principles of secularism and the neutrality of public services: “... In view of Law no. 83-634 of 13 July 1983 [laying down the rights and duties of civil servants, see paragraph 25 below]... Although civil-service employees, like all citizens, enjoy the freedom of conscience and of religion laid down in the constitutional, legislative and convention texts, which prohibit any discrimination based on their religious beliefs or their atheism, particularly in terms of access to positions, career progress and the disciplinary system, the principles of the secular nature of the State and the bodies to which its powers are delegated and of neutrality in public services preclude those employees, in the exercise of their duties, from being entitled to manifest their religious belief, especially through external sartorial expression; this principle, which is intended to protect the users of the service from any risk of influence or of interference with their own freedom of conscience, concerns all public services and not only the education service; this obligation must be applied with particular stringency in those public services where the users are in a fragile or dependent state;...” It dismissed the applicant’s action, pointing out that the decision not to renew her contract had been taken on account of her refusal to remove her veil “following complaints submitted by certain patients in the care centre and in spite of repeated warnings by her line managers and friendly advice from her colleagues”. The court considered that on the basis of the above-mentioned principles concerning the expression of religious opinions within the public services, the administrative authorities had not committed an error of assessment in refusing to renew the contract on the implied grounds of her wearing of “attire manifesting, in an ostensible manner, allegiance to a religion”. It concluded “thus, even though the applicant’s employer tolerated the wearing of this veil for several months and [her] conduct cannot be considered as deliberately provocative or proselytising, the hospital has not acted illegally in deciding not to renew the contract following her refusal to stop wearing the veil.” 12. By a judgment of 2 February 2004, the Paris Administrative Court of Appeal held that the contested decision was disciplinary in nature, in that “it transpires from both the letter of 28 December from the Centre’s Director of Human Resources and the hospital’s defence pleadings that [the decision] was taken on account of [the applicant’s] persistence in wearing a veil for religious reasons during her working hours...”. It therefore quashed the decision on procedural grounds, given that the applicant had not been informed of the reasons for the envisaged measure prior to its adoption, nor given an opportunity to consult her case file. 13. In execution of the court of appeal’s judgment, the Director of the CASH invited the applicant to inspect the case file. By a reasoned judgment of 13 May 2005, he confirmed that her contract would not be renewed: “As a result of the judgment of the Paris Administrative Court of Appeal dated 2 February 2004, which held that the non-renewal of your fixed-term contract which expired on 31 December 2000 had been disciplinary in nature, we invited you again to inspect your administrative file on 10 May 2005, in order to bring the procedure into line with the regulations. As required in execution of the same judicial decision, we hereby inform you that the disciplinary basis for the non-renewal of your contract is your refusal to remove your veil, in that it ostensibly manifests your religious affiliation. In application of the principles of the secular nature of the State and the neutrality of public services, which underlie the duty of discretion imposed on every State employee, even those employed under contract, your refusal to remove your head covering when carrying out your duties effectively amounts to a breach of your obligations, thus exposing you to a legitimate disciplinary sanction, as the Conseil d’État held, with regard to the principle, in its Opinion concerning Ms Marteaux, dated 3 May 2000. Our decision not to renew the contract is all the more justified in the present case in that you were required to be in contact with patients when carrying out your duties.” 14. By a letter of 29 June 2005, the administrative court of appeal informed the applicant that the CASH had taken the measures required by the judgment of 2 February 2004. It advised her that where a decision was set aside on procedural grounds, the administrative body could legally take new decisions that were identical to those that had been set aside, provided that they complied with the relevant procedure, and that the new decision of 13 May 2005 could be challenged before the administrative court. 15. In January 2006 the applicant asked the Versailles Administrative Court to set aside the decision of 13 May 2005. She argued, in particular, that the Conseil d’État’s Opinion of 3 May 2000, relied upon by her employer, was intended to apply only to teachers. 16. By a judgment of 26 October 2007, the court dismissed her request, basing its decision on the principles of State secularism and the neutrality of public services: “... However, while the Conseil d’État’s Opinion of 3 May 2000 specifically concerns the case of an employee in the public education service, it also clearly states that the constitutional and legislative texts show that the principles of freedom of conscience, State secularism and the neutrality of public services apply to the public services in their entirety; although civil-service employees, like all citizens, enjoy the freedom of conscience and of religion laid down in the constitutional, legislative and convention texts, which prohibit any discrimination based on their religious beliefs or their atheism, particularly with regard to access to positions, career progress and also the disciplinary system, the principles of the secular nature of the State and the bodies to which its powers are delegated and of neutrality in public services preclude those employees, in the exercise of their duties, from being entitled to manifest their religious belief, especially through external sartorial expression; this principle is intended to protect the users of the service from any risk of influence being exerted or of interference with their own freedom of conscience. In view of the above-mentioned principles concerning the manifestation of religious opinions within the public service, the administrative body did not act illegally in refusing to renew the [applicant’s] contract on the implied grounds of her wearing attire manifesting, in an ostensible manner, allegiance to a religion.” 17. The applicant lodged an appeal against that judgment. 18. By a judgment of 26 November 2009, the Versailles Administrative Court of Appeal upheld the judgment, reiterating the reasons given by the lower courts. 19. The applicant appealed on points of law to the Conseil d’État. In her submissions, she emphasised that the administrative court of appeal had deprived its judgment of any legal basis in that it had failed to specify the nature of the item of attire worn by her which had justified the sanction. She referred to the disproportionate nature of that sanction, and alleged that it had been incompatible with Article 9 of the Convention. 20. By a judgment of 9 May 2011, the Conseil d’État declared the appeal inadmissible.