DAHLAB v. SWITZERLAND
Inadmissible
The applicant [Lucia Dahlab], a Swiss national born in 1965, is a primary-school teacher and lives in Geneva (Switzerland). She was represented before the Court by Mr M. Lironi and Mr C. Aellen, both of the Geneva Bar. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was appointed as a primary-school teacher by the Geneva cantonal government (Conseil d’Etat) on 1 September 1990, having taught at Châtelaine Primary School in the Canton of Geneva since the 1989-90 school year. After a period of spiritual soul-searching, the applicant abandoned the Catholic faith and converted to Islam in March 1991. On 19 October 1991 she married an Algerian national, Mr A. Dahlab. The marriage has produced three children, born in 1992, 1994 and 1998. The applicant began wearing an Islamic headscarf in class towards the end of the 1990-91 school year, her intention being to observe a precept laid down in the Koran whereby women were enjoined to draw their veils over themselves in the presence of men and male adolescents. The applicant went on maternity leave from 21 August 1992 to 7 January 1993 and from 12 January 1994 to 1 June 1994. In May 1995 the schools inspector for the Vernier district informed the Canton of Geneva Directorate General for Primary Education that the applicant regularly wore an Islamic headscarf at school; the inspector added that she had never had any comments from parents on the subject. On 27 June 1996 a meeting was held between the applicant, the Director General of Primary Education (“the Director General”) and the head of the teaching-personnel department concerning the fact that the applicant wore a headscarf. In a letter of 11 July 1996 the Director General confirmed the position she had adopted at the meeting, requesting the applicant to stop wearing the headscarf while carrying out her professional duties, as such conduct was incompatible with section 6 of the Public Education Act. In a letter of 21 August 1996 the applicant requested the Director General to issue a formal ruling on the matter. On 23 August 1996 the Directorate General for Primary Education confirmed its previous decision. It prohibited the applicant from wearing a headscarf in the performance of her professional duties on the grounds that such a practice contravened section 6 of the Public Education Act and constituted “an obvious means of identification imposed by a teacher on her pupils, especially in a public, secular education system”. On 26 August 1996 the applicant appealed against that decision to the Geneva cantonal government. The cantonal government dismissed the appeal in an order of 16 October 1996, on the following grounds: “Teachers must ... endorse both the objectives of the State school system and the obligations incumbent on the education authorities, including the strict obligation of denominational neutrality... The clothing in issue ... represents ..., regardless even of the appellant’s intention, a means of conveying a religious message in a manner which in her case is sufficiently strong ... to extend beyond her purely personal sphere and to have repercussions for the institution she represents, namely the State school system.” On a public-law appeal lodged by the applicant on 25 November 1996, in which she had alleged a violation of Article 9 of the Convention and submitted that the prohibition on wearing a headscarf interfered with the “inviolable core of her freedom of religion”, the Federal Court upheld the Geneva cantonal government’s decision in a judgment of 12 November 1997, which was served on 18 November 1997. It held, in particular: “Firstly, it should be observed that the appellant’s main argument is that her clothing, consisting of items that may be purchased at the hypermarket, should be treated not as a religious symbol but in the same way as any other perfectly inoffensive garments that a teacher may decide to wear for his or her own reasons, notably for aesthetic reasons or in order to emphasise or conceal part of his or her anatomy (a scarf around the neck, a cardigan, a hat, etc.). She accordingly submits that the impugned decision is tantamount to prohibiting teachers, without sufficient justification, from dressing as they please. However, there is no doubt that the appellant wears the headscarf and loose-fitting clothes not for aesthetic reasons but in order to obey a religious precept which she derives from the following passages of the Koran. ... The wearing of a headscarf and loose-fitting clothes consequently indicates allegiance to a particular faith and a desire to behave in accordance with the precepts laid down by that faith. Such garments may even be said to constitute a ‘powerful’ religious symbol – that is to say, a sign that is immediately visible to others and provides a clear indication that the person concerned belongs to a particular religion. What is in issue, therefore, is the wearing of a powerful religious symbol by a teacher at a State school in the performance of her professional duties. No restrictions have been imposed on the appellant as regards her clothing when she is not teaching. Nor does the case concern the wearing of a religious attribute by a pupil or the wearing of outlandish or unusual clothing with no religious connotations by a teacher at school. ... Similarly, by Article 9 § 2 of the European Convention on Human Rights, freedom to manifest one’s religion or beliefs may be subject to restrictions (see the European Court of Human Rights’ judgment of 25 May 1993 in the case of Kokkinakis v. Greece, Series A no. 260-A, § 33, and Frowein and Peukert, Europäische Menschenrechtskonvention, 2nd ed., 1996, note 1 on Article 9, p. 368). Conversely, freedom of thought is absolute; since it cannot by nature give rise to any interference with public order, it is not subject to any restrictions (see Velu and Ergec, La Convention européenne des droits de l’homme, Brussels, 1990, note 714, p. 584). In the instant case, even if it is particularly important to the appellant and does not merely represent an expression of a particular religious belief but complies with an imperative requirement of that belief, the wearing of a headscarf and loose-fitting clothes remains an outward manifestation which, as such, is not part of the inviolable core of freedom of religion. ... 3. The appellant maintains that the impugned order does not have a sufficient basis in law. ... Serious interferences with constitutional freedoms must be clearly and unequivocally provided for, as to their substance, by a law in the strict sense (ATF [Arrêts du Tribunal fédéral suisse], vol. 122 I, p. 360, ground 5(b)(bb), at p. 363, and vol. 118 Ia, p. 305, ground 2(a), at pp. 309-10). However, where interference with freedom of conscience and belief results from a rule of conduct that is very specific or would be regarded by the average citizen as being of minor importance (in this case, prohibiting a teacher from wearing a headscarf at school), the requisite basis in law cannot be too precise. In such circumstances it is sufficient for the rule of conduct to derive from a more general obligation laid down by the law in the strict sense. Furthermore, the decision appealed against concerns the appellant in her capacity as a civil servant of the Canton of Geneva. Civil servants are bound by a special relationship of subordination to the public authorities, a relationship which they have freely accepted and from which they benefit; it is therefore justifiable that they should enjoy public freedoms to a limited extent only. In particular, the legal basis for restrictions on such freedoms does not have to be especially precise. The manifold, varying nature of daily relations between a civil servant and the authority to which he or she is answerable means that it is impossible to lay down an exhaustive list of types of conduct to be restricted or prohibited. It is therefore sufficient for the law to give a general indication, by means of indeterminate legal concepts, of the values which must be adhered to and which may subsequently be made explicit in an order or in an individual decision. However, as to their substance, any restrictions on public freedoms must be justified by the aim pursued and by the proper functioning of the institution. Lastly, observance of the principles of public interest and proportionality is to be monitored all the more rigorously where the interference with the civil servant’s interests is serious and the basis in law imprecise (ATF, vol. 120 Ia, p. 203, ground 3(a), at p. 205; vol. 119 Ia, p. 178, ground 6(b), at p. 188; vol. 101 I a, p. 172, ground 6, at p. 181; SJ [La Semaine Judiciaire], 1995, p. 681, ground 3; ZBl [Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht] 85/1984, p. 308, ground 2(b); Pierre Moor, Droit administratif, Berne, vol. III, 1992, note 5.1.2.3., pp. 213-14, and note 5.3.1.2., pp. 223-24; vol. I, 1994, note 4.2.4.5., pp. 362 et seq.; Thomas Wyss, Die dienstrechtliche Stellung des Volksschullehrers im Kanton Zürich, thesis, Zürich, 1986, pp. 224 et seq.; Paul Richli, ‘Grundrechtliche Aspekte der Tätigkeit von Lehrkräften’, in PJA [Pratique juridique actuelle] 6/93, pp. 673 et seq., in particular p. 677). In Geneva, section 6 of the cantonal Public Education Act of 6 November 1940 provides: ‘The public education system shall ensure that the political and religious beliefs of pupils and parents are respected’. It also follows from Articles 164 et seq. of the cantonal Constitution that there is a clear separation between Church and State in the canton, the State being secular (Ueli Friederich, Kirchen und Glaubensgemeinschaften im pluralistischen Staat, thesis, Berne, 1993, p. 239, and Häfelin, op. cit. [Commentaire de la Constitution fédérale], notes 26-27 on Article 49). In the education system, this separation is given practical effect by section 120(2) of the Public Education Act, which provides: ‘Civil servants must be lay persons; derogations from this provision shall be permitted only in respect of university teaching staff’. In the instant case the measure prohibiting the appellant from wearing a headscarf that clearly identified her as a member of a particular faith reflects an increasing desire on the part of the Geneva legislature, as expressed in the provisions cited above, to ensure that the education system observes the principles of denominational neutrality (cf. Article 27 § 3 of the Constitution) and of separation between Church and State. Accordingly, even if the impugned order entailed serious interference with the appellant’s freedom of religion, it had a sufficient basis in law. ... 4. (a) The appellant further submits that there were no public-interest grounds for the impugned decision. In displaying a powerful religious attribute on the school premises – indeed, in the classroom – the appellant may have interfered with the religious beliefs of her pupils, other pupils at the school and the pupils’ parents. Admittedly, there have been no complaints from parents or pupils to date. But that does not mean that none of them has been affected. Some may well have decided not to take any direct action so as not to aggravate the situation, in the hope that the education authorities will react of their own motion. Moreover, the matter has caused a stir among the public, the appellant has given numerous interviews and the Grand Council [cantonal parliament] has passed a resolution along the same lines as the decision taken by the cantonal government. In addition, while it is true that the education authorities did not intervene by taking a decision immediately after the inspector had informed them of the appellant’s clothing, that attitude should not be construed as implicit approval. It is understandable that the authorities should first have attempted to settle the matter without resorting to confrontation. The impugned decision is fully in accordance with the principle of denominational neutrality in schools, a principle that seeks both to protect the religious beliefs of pupils and parents and to ensure religious harmony, which in some respects is still fragile. In this connection, it should be noted that schools would be in danger of becoming places of religious conflict if teachers were allowed to manifest their religious beliefs through their conduct and, in particular, their clothing. There are therefore significant public-interest grounds for prohibiting the appellant from wearing an Islamic headscarf. (b) It remains to be determined whether the impugned order observes the principle of proportionality; the interests at stake must be weighed up with the utmost care (Häfelin, op. cit., note 139 on Article 49). Here, the appellant’s freedom of conscience and belief should be weighed against the public interest in ensuring the denominational neutrality of the school system; in other words, the appellant’s interest in obeying a precept laid down by her faith should be set against the interest of pupils and their parents in not being influenced or offended in their own beliefs, and the concern to maintain religious harmony in schools. Lastly, regard must also be had to the need for tolerance – a further element of the principle of denominational neutrality – between members of different religious faiths... It should, however, be emphasised at the outset that religious freedom cannot automatically absolve a person of his or her civic duties – or, as in this case, of the duties attaching to his or her post (ATF, vol. 119 Ia, p. 178, ground 7(a), at p. 190). Teachers must tolerate proportionate restrictions on their freedom of religion (Hafner, La liberta religiosa chiede la tolleranza per i simboli religiosi, J+P Text 2/95, note III/D4, p. 9; Thomas Wyss, op. cit., p. 232). (aa) Before the points in issue are examined in greater detail, it may be helpful to consider the solutions adopted by other countries in identical cases or by the Federal Court in similar cases. ... Freedom of conscience and belief requires the State to observe denominational and religious neutrality; citizens may assert individual rights in this domain (ATF, vol. 118 Ia, p. 46, ground 3(b) at p. 53, and ground 4(e)(aa) at p. 58; vol. 113 Ia, p. 304, ground 4c at p. 307). There may be an infringement of freedom of religion where the State unlawfully takes sides in religious or metaphysical disputes, in particular by offering financial support to one of the protagonists (ATF, vol. 118 Ia, p. 46, ground 4(e)(aa) at p. 58). However, the neutrality requirement is not absolute, as is illustrated by the fact that national churches recognised by public law are allowed to exist (ATF, vol. 118 Ia, p. 46, ground 4(e)(aa) at p. 58; vol. 116 Ia, p. 252, ground 5(d) at pp. 258-59). Neutrality does not mean that all religious or metaphysical aspects are to be excluded from the State’s activities; however, an attitude that is anti-religious, such as militant secularism, or irreligious does not qualify as neutral. The principle of neutrality seeks to ensure that consideration is given, without any bias, to all conceptions existing in a pluralistic society. The principle that the State may not discriminate in favour of or against anybody on religious grounds is general in scope and results directly from Articles 49 and 50 of the Constitution (ATF, vol. 118 Ia, p. 46, ground 4(e)(aa) at p. 58; Karlen, ‘Umstrittene Religionsfreiheit’, op. cit. [in Revue du droit suisse (‘RDS’) 1997 I, p. 193] at pp. 199-200; idem, Das Grundrecht [der Religionsfreiheit in der Schweiz], op. cit. [Zürich, 1988], p. 188). Lastly, the secular nature of the State entails an obligation to remain neutral, which means that in all official dealings it must refrain from any denominational or religious considerations that might jeopardise the freedom of citizens in a pluralistic society (ATF, vol. 116 Ia, p. 252, ground 5(e) at p. 260, and the references cited). In that respect, the principle of secularism seeks both to preserve individual freedom of religion and to maintain religious harmony in a spirit of tolerance (see Gut, op. cit. [‘Kreuz und Kruzifix in öffentlichen Räumen im säkularen Staat’, in RDS 1997 I, p. 63], note 11 at p. 76; and Martin Philipp Wyss, op. cit. [‘Glaubens- und Religionsfreiheit zwischen Integration und Isolation’, in ZBl 95/1994, p. 385], at pp. 400-01). This neutrality assumes particular importance in State schools, because education is compulsory for all, without any distinction being made between different faiths. In this respect, Article 27 § 3 of the Federal Constitution, according to which ’it shall be possible for members of all faiths to attend State schools without being affected in any way in their freedom of conscience or belief’, is the corollary of freedom of conscience and belief. ... Accordingly, the attitude of teachers plays an important role. Their mere conduct may have a considerable influence on their pupils; they set an example to which pupils are particularly receptive on account of their tender age, their daily contact with them – which, in principle, is inescapable – and the hierarchical nature of this relationship. Teachers are both participants in the exercise of educational authority and representatives of the State, which assumes responsibility for their conduct. It is therefore especially important that they should discharge their duties – that is to say, imparting knowledge and developing skills – while remaining denominationally neutral.” After a lengthy discussion of the scope of the neutrality requirement, the Federal Court concluded as follows: “(cc) In the instant case, on the one hand, as was outlined above, prohibiting the appellant from wearing a headscarf forces her to make a difficult choice between disregarding what she considers to be an important precept laid down by her religion and running the risk of no longer being able to teach in State schools. On the other hand, however, the headscarf is a manifest religious attribute in this case. Furthermore, the appellant teaches in a primary school; her pupils are therefore young children who are particularly impressionable. Admittedly, she is not accused of proselytising or even of talking to her pupils about her beliefs. However, the appellant can scarcely avoid the questions which her pupils have not missed the opportunity to ask. It would seem somewhat awkward for her to reply by citing aesthetic considerations or sensitivity to the cold – the approach she claims to have adopted to date, according to the file – because the children will realise that she is evading the issue. It is therefore difficult for her to reply without stating her beliefs. However, the appellant participates in the exercise of educational authority and personifies school in the eyes of her pupils; as a result, even if other teachers from the same school display different religious views, the manifestation of such an image of oneself appears hard to reconcile with the principle of non-identification with a particular faith in so far as her status as a civil servant means that the State must assume responsibility for her conduct. Lastly, it should be emphasised that the Canton of Geneva has opted for a clear separation between Church and State, reflected in particular by the distinctly secular nature of the State education system. It must also be acknowledged that it is difficult to reconcile the wearing of a headscarf with the principle of gender equality (see Sami Aldeeb, ‘Musulmans en terre européenne’, in PJA 1/96, pp. 42 et seq., in particular section (d) at p. 49), which is a fundamental value of our society enshrined in a specific provision of the Federal Constitution (Article 4 § 2) and must be taken into account by schools. Furthermore, religious harmony ultimately remains fragile in spite of everything, and the appellant’s attitude is likely to provoke reactions, or even conflict, which are to be avoided. When the various interests at stake are weighed up, regard must also be had to the fact that allowing headscarves to be worn would result in the acceptance of garments that are powerful symbols of other faiths, such as soutanes or kippas (in this connection, the principle of proportionality has led the cantonal government to allow teachers to wear discreet religious symbols at school, such as small pieces of jewellery – an issue that does not require further discussion here). Such a consequence might undermine the principle of denominational neutrality in schools. Lastly, it may be observed that it is scarcely conceivable to prohibit crucifixes from being displayed in State schools and yet to allow the teachers themselves to wear powerful religious symbols of whatever denomination.” Section 6 of the Canton of Geneva Public Education Act of 6 November 1940 provides: “The public education system shall ensure that the political and religious beliefs of pupils and parents are respected.” Section 120(2) of the Public Education Act provides: “Civil servants must be lay persons; derogations from this provision shall be permitted only in respect of university teaching staff.” Article 27 § 3 of the Federal Constitution of 29 May 1874 reads: “It shall be possible for members of all faiths to attend State schools without being affected in any way in their freedom of conscience or belief.”