Information Note on the Court’s case-law No. 114
December 2008
Kervanci v. France - 31645/04
Judgment 4.12.2008 [Section V]
Article 9
Article 9-1
Manifest religion or belief
Expulsion of female pupils from State school for refusing to remove headscarves during physical education and sports lessons: no violation
[This summary also covers the Judgment in the case of Dogru v. France, no. 27058/05, 4 December 2008]
Facts: The applicants in these two cases – an eleven- and a twelve-year-old girl, both of the Muslim faith – enrolled at a public secondary school for the academic year 1998-1999. In January 1999 they presented themselves a number of times for physical education and sports lessons wearing headscarves, which they refused to take off in spite of repeated requests from their teacher, who explained that wearing headscarves was incompatible with physical education classes. In February 1999 the school’s pupil discipline committee ordered the applicants’ expulsion for repeated failure to participate actively in physical education and sports lessons. In March 1999 the area Director of Education upheld that decision after consulting the Academic Appeals Board, which justified the ban on the wearing of headscarves during physical education in terms of compliance with school regulations governing safety, health and attendance. In October 1999 the Administrative Court dismissed applications lodged by the applicants’ parents seeking to have the Director of Education’s decision set aside. The court found that by presenting themselves for physical education and sports lessons wearing garments that prevented them from participating in the activities concerned, the applicants had failed in their duty to attend classes regularly; their attitude had created a climate of tension at the school, and all these factors taken together sufficed to justify their expulsion from the school, in spite of their proposal, at the end of January, to wear hats instead of scarves. The Administrative Court of Appeal subsequently upheld those rulings, noting that the applicants had overstepped the limits of the right to express and manifest their religious beliefs on school premises. The Conseil d'Etat ultimately declared appeals lodged by the applicants’ parents inadmissible. The applicants submitted that after being expelled from the school they had continued their schooling by correspondence.
Law: The ban on wearing headscarves during physical education and sports lessons and the expulsion of the applicants from their school for refusing to remove their headscarves amounted to a “restriction” of the applicants’ exercise of their right to freedom of religion.
At the material time no law explicitly prohibited the wearing of headscarves in physical education lessons, the events in this case having taken place prior to the enactment of Law no. 2004-228 of 15 March 2004, which regulated the wearing of symbols or vestimentary signs of one’s religious beliefs on public school premises, in application of the principle of secularism. However, the French authorities had justified these measures by the combination of three factors: the requirement of assiduity in attending lessons, safety concerns and the need to dress in a manner compatible with the practice of sports. These factors were based on laws and regulations, internal documents (circulars, memoranda, school rules) and decisions of the Conseil d'Etat. The impugned interference had therefore had sufficient legal basis in domestic law, and the rules had been accessible as they consisted mainly of provisions that had been duly published, and established case-law of the Conseil d'Etat. Furthermore, in signing the school rules when they had enrolled at the school, the applicants had been made aware of their content and had undertaken to respect them, with their parents’ agreement. The applicants could therefore have foreseen, to a degree that was reasonable, that at the material time the refusal to remove their headscarves for physical education and sports classes might lead to their expulsion for failure to attend classes, so that the interference could be considered to have been “prescribed by law”.
Furthermore, the restriction of the applicants’ right to manifest their religion had pursued the aim of defending the requirements of secularism in public education, as interpreted by the Conseil d'Etat and ministerial circulars on the matter. The same sources indicated that the wearing of religious signs was not, in itself, incompatible with the principle of secularism in schools, but could become so depending on the conditions in which they were worn and the consequences that wearing them could have. Referring to its earlier judgments in which it had held that it was for the national authorities, in the exercise of their margin of appreciation, to take great care to ensure that, in keeping with the principle of respect for pluralism and the freedom of others, the manifestation by pupils of their religious beliefs on school premises did not take on the nature of an ostentatious act that would constitute a source of pressure and exclusion, the Court found that that concern did indeed appear to have been answered by the French secular model. In the present cases the conclusion reached by the national authorities that the wearing of a veil, such as the Islamic headscarf, was incompatible with sports classes for reasons of health or safety was not unreasonable. The penalty imposed had merely been the consequence of the applicants’ refusal to comply with the rules applicable on the school premises – of which they had been properly informed – and not of their religious convictions, as they alleged.
Furthermore, the disciplinary measures taken against the applicants had fully satisfied the duty to balance the various interests at stake and had been accompanied by safeguards that were apt to protect the pupils’ interests. As regards the choice of the most severe penalty, where the ways and means of ensuring respect for internal rules were concerned, it was not within the province of the Court to substitute its own vision for that of the disciplinary authorities which, being in direct and continuous contact with the educational community, were best placed to evaluate local needs and conditions or the requirements of a particular training.
Consequently, the penalty of expulsion did not appear disproportionate, and the applicants had been able to continue their schooling by correspondence classes. The applicant’s religious convictions thus appeared to have been fully taken into account in relation to the requirements of protecting the rights and freedoms of others and public order. It was also clear that the decision complained of had been based on those requirements and not on any objections to the applicant’s religious beliefs. The interference in question had been justified in terms of the principle and proportionate to the aim pursued.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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