Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communicationNo. 2807/2016 * , ** , ***

Communication submitted by:Miriana Hebbadj (represented by counsel, Roger Kallas)

Alleged victim:The author

State party:France

Date of communication:3 March 2016 (initial submission)

Document references:Decision taken pursuant to rule 97 of the Committee’s rules of procedure, transmitted to the State party on 14 March 2016 (not issued in document form)

Date of adoption of Views :17 July 2018

Subject matter:Right to freedom of religion; discriminatory treatment of a religion and its followers

Procedural issues:Admissibility – examination under another procedure of international investigation or settlement; exhaustion of domestic remedies

Substantive issues:Freedom of religion or belief; non-discrimination

Articles of the Covenant:18 and 26

Article of the Optional Protocol:5 (2) (a) and (b)

1.1The author of the communication is Miriana Hebbadj, a national of France born in 1974. She claims that the State party has violated her rights under articles 18 and 26 of the Covenant.The Optional Protocol entered into force for the State party on 17 May 1984. The author is represented by counsel.

1.2On 22 September 2017, pursuant to rule 97 (3) of its rules of procedure, the Committee, acting through its Special Rapporteur on new communications and interim measures, informed the State party and the author of its decision to consider the admissibility of the communication jointly with the merits.

Facts as submitted by the author

2.1The author is a Muslim and wears a niqab (a full-face veil). On 21 November 2011, she was stopped for an identity check while wearing her niqab on the street in Nantes. She was then prosecuted and convicted of the minor offence of wearing an article of clothing intended to conceal the face in a public space.

2.2The author was convicted on 26 March 2012 and was ordered by the community court in Nantes to pay a fine of €150, the maximum penalty for the offence in question, which was established by Act No. 2010-1192 of 11 October 2010 (hereinafter “the Act”).Article 1 of the Act stipulates that no one may, in a public space, wear any article of clothing intended to conceal the face. Article 2 of the Act, on its scope of application, provides that public space comprises public thoroughfares and places open to the public or used for public services. It also establishes that the prohibition does not apply to clothing prescribed or authorized by law or justified for health reasons or on professional grounds, or is part of sporting, artistic or traditional festivities or events.

2.3Article 3 of the Act sets the following penalties for such an infraction: a fine corresponding to category two offences and/or mandatory attendance at a citizenship course. The Act also establishes the more serious offence of forcing a person to conceal the face, which has been included in article 225-4-10 of the Criminal Code, establishing that the act, by any person, of forcing one or more other persons to conceal their face, by means of threats, violence, coercion or abuse of authority or of power, by reason of their sex, shall be punishable with one year of imprisonment and a fine of €30,000. When such an act is committed against a minor, the penalties shall be increased to two years’ imprisonment and a fine of €60,000.

2.4The author is challenging, on the basis of article 18 of the Covenant, the ban on concealing the face in public spaces, which deprives women wishing to wear a full-face veil of the possibility to do so.

2.5As for the steps taken by the author, as the decision of the community court judge was not subject to appeal, she filed an application for review with the criminal chamber of the Court of Cassation. She argued that the Act, which prohibited the wearing in a public space of an article of clothing intended to conceal the face and established the legal basis for the infraction of which she was convicted, was contrary to article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), which protected the right to manifest one’s religion. On the merits, she also claimed that the Act was discriminatory in nature, inviting the Court of Cassation to ascertain whether it “undermined pluralism by discriminating against a minority practice of the Muslim religion”.

2.6The application was rejected by the criminal chamber of the Court of Cassation in a decision of 3 April 2013, on the grounds that “the argument regarding a violation of the European Convention on Human Rights, since it was not brought before the trial judge and contains additional factual evidence, is new and thus inadmissible”. This decision cannot be appealed. The author maintains that she has exhausted all available domestic remedies.

2.7The author points out that she was not assisted by counsel at the community court in Nantes; that the procedure is an expedited one, with a single judge who is generally not even a judge by profession; and that the procedure is not subject to appeal, leaving her no chance to set out arguments related to her religious freedom and the discriminatory nature of the Act.

2.8The author adds that the Court of Cassation, by holding that “the argument regarding a violation of the European Convention on Human Rights, since it was not brought before the trial judge and contains additional factual evidence, is new and thus inadmissible”, incorrectly applied article 619 of the Code of Civil Procedure, which provides that new grounds will not be admissible before the Court of Cassation. Nevertheless, the following may be raised for the first time, unless stipulated otherwise: (a) purely legal grounds; and (b) grounds based on the impugned decision.

2.9According to the author, as the ground invoked, that is, the incompatibility of a law, constitutes “purely legal grounds”, her appeal to the Court of Cassation against the banning of the full-face veil was perfectly admissible, notwithstanding the fact that it was a new argument. The author cites the example of a posteriori review of constitutionality; since 2010, it has been possible by law to raise this issue for the first time in an appeal to the Court of Cassation. She adds that an assessment in abstracto of the constitutionality of a law is by nature a “purely legal” matter and takes no account of the specific circumstances in a given case. According to the author, the same holds true when the conformity of a domestic law with a treaty obligation is assessed with the same degree of objectivity.

2.10The author therefore calls upon the Committee to find that her complaint cannot be deemed inadmissible, as the ground invoked before the Court of Cassation did not constitute additional evidence of fact and law, but was a “purely legal” ground.

2.11The author submitted an application to the European Court of Human Rights on 24 June 2013, calling for it to find violations of articles 6 (1) and 9 of the European Convention on Human Rights. Her application was declared inadmissible by the Court, meeting in single-judge formation between 21 August and 4 September 2014, on the grounds that the conditions of admissibility laid down in articles 34–35 of the Convention had not been met.

Complaint

3.1According to the author, the ban on concealing the face in public spaces and the fact that she was convicted for wearing the niqab are a violation of her rights under articles 18 and 26 of the Covenant.

3.2Regarding article 18, wearing the niqab or the burka amounts to wearing a garment that is customary for a segment of the Muslim faithful. It is an act motivated by religious beliefs. Consequently, it concerns the observance and practice of a religion, and freedom to manifest that religion is guaranteed by article 18 of the Covenant, notwithstanding the fact that wearing the niqab or the burka is not a religious requirement common to all practising Muslims. The author refers to the Committee’s general comment No. 22 (1993), in which it stated that the observance and practice of religion or belief may include not only ceremonial acts, but also such customs as the observance of dietary regulations and the wearing of distinctive clothing or head coverings. Wearing the niqab or the burka amounts to wearing a garment that is customary for a segment of the Muslim faithful, an act that is motivated by religious beliefs and is thus part of the observance and practice of religion, and freedom to manifest a religion is guaranteed by article 18 of the Covenant.

3.3According to the author, there can be no disputing that the State is interfering in the religious freedom of the minority of Muslim women who wear the full-face veil (according to a parliamentary commission that studied the matter, fewer than 2,000 women are concerned). The author recalls, in this regard, the reservation entered by the Constitutional Council of France regarding places of worship, in its decision of 7 October 2010: “The ban on concealing the face in public spaces cannot, without excessively undermining article 10 of the Declaration of 1789, restrict the exercise of religious freedom in places of worship open to the public.”Conversely, according to the author, it must be admitted that the exercise of her religious freedom in all other public spaces has been restricted by the legislature.

3.4The author refers to the Committee’s jurisprudence, in particular its Views in Ranjit Singh v. France, in which it found a violation of article 18 in a case of interference in the exercise of religious freedom, when a person was photographed bareheaded for the renewal of a residence permit.According to the author, the ban on wearing a full-face veil in public spaces is a similar but even worse form of interference with the freedom of religion, as she is being forced to appear without her full-face veil at all times.

3.5The author adds that the limitations applied to article 18 have not been justified on permissible grounds, such as those set out in article 18 (3) of the Covenant. While the limitations are prescribed by law, they are neither necessary nor proportionate to the purpose of the Act. First of all, that purpose has not been clearly defined by the legislature. The Act includes no statement of purpose and provides no information on its legal basis; it does not even refer to the parliamentary resolution of 11 May 2010 in which the National Assembly expressed the view that wearing a full-face veil went against the principles of the French Republic.A quick look at the origins of the Act shows that it was justified exclusively by a political desire to ban, as a matter of principle, the wearing of the full-face veil; the Act thus has no legitimate purpose within the meaning of article 18 (3) of the Covenant.The lack of a legitimate purpose undermines the argument that the law was even necessary.

3.6The author adds that, even if such a purpose were established, such a limitation could not possibly be considered as necessary and proportionate. The State has put forward the argument that the Act pursued two main objectives, namely: equality between men and women and the protection of public order.Such objectives, however, cannot justify an infringement of the right to manifest one’s religion.

3.7First, the objective of equality between men and women cannot be associated per se with any of the purposes set out in article 18 (3). The Committee has stated in its general comment No. 22 (1993) (para. 8) that restrictions were not allowed on grounds not specified in paragraph 3. The author adds that forcing women who wish to wear full-face veils to remove them in public spaces constitutes the imposition of a dress code on women and that presumptions relating to their attitudes towards gender inequality are based solely on prejudices held by some people about the way of life of certain groups. No woman wearing a full-face veil has ever advocated inequality between men and women.

3.8As for the protection of public order, which is the only legal basis that could have been retained if the legislature had chosen, as proposed by some members of parliament, to limit the ban on wearing a full-face veil to certain places or occasions, or to establish an obligation to temporarily uncover the face for the purposes of identification. That, however, was not what the Government of France opted to do.

3.9The author notes that it has never been claimed that women wearing the burka or the niqab – who, incidentally, are a tiny minority – threaten public safety or create public unrest. While it can legitimately be argued that, in certain specific circumstances, there is a need to be able to identify persons in public places with their faces uncovered, it is unthinkable for such an obligation to “unveil” to be permanent and absolute. Only specific, limited restrictions could be tolerated. Because it is so general in nature, the ban introduced by the Act cannot be described as necessary for the protection of public order.

3.10In any event, the ban is not proportionate to its objective, as the ban is permanent, it covers all public spaces and violation is a criminal offence. Wearing the full-face veil – the means of concealment of the face specifically targeted by the draft and in the debate leading up to the adoption of the Act – apparently can never be authorized under the exceptions set out in article 2 (2) of the Act.

3.11The European Court of Human Rights, in its judgment in the case of S.A.S. v. France, dismissed the objective of protecting public safety and public order invoked by France, applying the principle of proportionality.The ban on concealing the face in public spaces therefore is not necessary to protect public safety and public order, insofar as it is clearly disproportionate to the stated objective.

3.12With regard to the claim under article 26, the author submits that the application of the Act was indirectly discriminatory, as it effectively compromised her exercise of freedom of religion and freedom of movement. The Act does not treat the author in the same way as the rest of the population. It obliges her, if she does not wish to risk a criminal penalty, to refrain from wearing the full-face veil in public, while for her, doing so is a religious duty. As the only way for her to wear the veil is to avoid going out and moving about in public, her liberty of movement, specifically guaranteed by article 12 of the Covenant, is restricted.

3.13While the Act is supposed to apply without distinction to any persons who conceal their faces in public, the fact remains that it has the effect of indirectly discriminating against women who wear the full-face veil. The discussions preceding the adoption of the Act clearly attest to the fact that it was considered a general solution that would specifically prohibit, by law, the wearing of the full-face veil. This indirect discrimination is also confirmed by the figures relating to the implementation of the Act, which nonetheless is supposed to cover any type of facial concealment, including helmets and ski masks.

3.14Lastly, the author reiterates that there are 2,000 women who wear the full-face veil in France. They account for more than half of the persons subjected to checks under the Act, which demonstrates that they are disproportionately subjected to checks.

3.15The author therefore calls upon the Committee to find that articles 18 and 26 of the Covenant have been violated.

State party’s observations on admissibility

4.1In a note verbale dated 15 November 2016, the State party submitted its observations on the admissibility of the communication and requested the Committee to declare it inadmissible in accordance with article 5 (2) (a) and (b) of the Optional Protocol.

4.2The author was found guilty of wearing a niqab in a public space by the community court in Nantes on 26 March 2012 and fined €150. The author did not attend the hearing. The author then submitted an application for review to the criminal chamber of the Court of Cassation, which, in a decision of 3 April 2013, rejected the application on the basis that “the argument regarding a violation of the European Convention on Human Rights, since it was not brought before the trial judge and contains additional factual evidence, is new and thus inadmissible”. The author then lodged an application with the European Court of Human Rights, which informed her by letter of 11 September 2014 that her application was inadmissible.

4.3The State party recalls the reservation related to article 5 (2) (a) that it entered upon ratifying the Optional Protocol.It recalls the Committee’s practice of not considering a matter as having been “examined” by another international body if the case has been dismissed on purely procedural grounds. Conversely, a decision of inadmissibility based on even a very limited, or implicit, consideration of the merits of a complaint constitutes an examination within the meaning of article 5 (2) (a).

4.4In the present case, the decision of the European Court of Human Rights addressed to the author declaring her application inadmissible does not cite the grounds for inadmissibility. However, articles 34–35 of the European Convention on Human Rights set out six grounds for inadmissibility: (a) if the six-month period for the submission of the application is exceeded, as counted from the date on which the final domestic decision is taken; (b) if the complaint is anonymous; (c) if the matter has already been submitted to another procedure of international investigation or settlement; (d) if domestic remedies have not been exhausted; (e) if the application is manifestly ill-founded or an abuse; and (f) if the applicant has not suffered a significant disadvantage.

4.5Given that the application was submitted within six months, not anonymously and exclusively to the European Court of Human Rights, and also that the alleged disadvantage was significant within the meaning of article 34 of the Convention, the State party considers that it follows implicitly, but also necessarily, that the application could only have been rejected by the Court for failure to exhaust domestic remedies or because it was considered to be manifestly ill-founded or an abuse.

4.6In the first of those scenarios, the Committee can only reach the same conclusion as the European Court of Human Rights, since it was in cassation that the author for the first time invoked the complaint of a violation of articles 18 and 26 of the Covenant. Consequently, as it did in the Bikramjit Singh case in relation to article 17, the Committee should declare the application inadmissible owing to non-exhaustion of domestic remedies.

4.7In the second scenario, if the European Court of Human Rights has rejected an application that it considers manifestly ill-founded, then it must have carried out an examination of the claims put forward by the applicants, which means that it has reviewed the merits of the case. That too would leave the Committee without jurisdiction, because of the reservation filed by France.

4.8According to the State party, the argument that the case before the Committee is not the same case cannot be accepted. The communication relates to the same facts and the same circumstances as the application submitted to the European Court of Human Rights. What is more, the issues raised are the same.

4.9The Committee has already indicated that the condition requiring the exhaustion of domestic remedies has not been met, as it was in cassation that the author first put forward the claim invoked before the Committee. Those grounds were declared inadmissible by the highest domestic court because they had not been invoked before the ordinary court.

4.10The author was duly summoned to the hearing and was in a position to seek the assistance of counsel for her defence, which she did not do; indeed, she chose not to attend the hearing. She cannot use her own failings as an argument. In conclusion, the Committee should declare the communication inadmissible.

State party’s observations on the merits

5.1In its observations on the merits of the communication dated 14 March 2017, the State party argues that the Act was passed, but for one vote, unanimously by the National Assembly and the Senate after a wide-ranging democratic debate. In this context, a parliamentary task force was set up involving elected representatives from across the political spectrum, which proceeded to hear many persons of diverse opinions, including both Muslim and non-Muslim women and civil society actors.

5.2On 11 May 2010 – prior to the adoption of the Act – the National Assembly adopted a resolution in which it said that radical practices detrimental to human dignity and equality between men and women, including the wearing of a full-face veil, were contrary to the values of the Republic and called for the implementation of all possible measures to ensure the effective protection of women subjected to violence or pressure, including by being forced to wear a full-face veil.

5.3The general ban introduced by the Act is extremely limited in scope, given that only the concealment of the face is prohibited. In addition, that measure is essential to defend the principles underlying its adoption, and the sanctions for violating article 1, applicable to women choosing to wear the full Islamic veil, are measured, lawmakers having given priority to the role of education. The Act therefore strikes a reasonable balance between the defence of the essential principles of a democratic society and the freedom to dress according to one’s religious or other beliefs.

5.4The State party emphasizes that it is not the only one to have banned the wearing of clothing that conceals the face in public spaces. For example, the federal parliament of Belgium has adopted the same ban and the lower house of the Parliament of Italy has passed a bill to the same effect.

5.5The ban introduced by the Act covers any article of clothing intended to conceal the face in public spaces, regardless of the form that it takes or the reason for wearing it. Therefore no special treatment is reserved for garments worn for religious or cultural reasons. Nevertheless, when certain articles of clothing intended to conceal the face are worn for religious reasons, the ban can be seen as a “restriction” on the freedom to manifest one’s religion or beliefs (positive law).

5.6The restriction in question is provided for in law, pursues a legitimate objective and is proportionate to this objective. The ban is prescribed in clear and precise terms, as are the exceptions. A circular of 2 March 2011 provides a comprehensive explanation of the scope and modalities for the application of the Act, which was complemented by a campaign in public places and a leaflet available in government offices, as well as an educational website. The Act provides for a period of six months from the time of its enactment to its entry into force and therefore meets the predictability requirement; the author knew that she was liable to be fined.

5.7The impugned Act pursues a legitimate aim, namely, the protection of the rights and freedoms of others and the protection of public order, which are among the grounds set out in article 18 (3) of the Covenant. These aims are clearly defined in the Act’s preamble, which reaffirms the values of the Republic and the requirements of living together. In this regard, the European Court of Human Rights, in its judgment in the case of S.A.S. v. France, considered that the ban could be justified only insofar as it sought to guarantee the conditions for “living together”, which the Government defined as observance of the minimum requirements of life in society. Public space is the social space par excellence in which a person is called upon to interact with others. In this interaction, the face plays a prominent role, since it is the part of the body where the shared humanity of individuals and their interlocutors is recognized. Showing one’s face not only indicates agreement to be identified by the interlocutor as an individual, but also agreement not to unfairly conceal the spirit in which the relationship is entered into, and is therefore a manifestation of the minimum level of trust required to live together in an open and egalitarian society, such as French society. The concealment of the face prevents the identification of a person and is liable to impair the interaction between individuals and undermine the conditions for living together in a diverse society.

5.8Public safety and public order require that everyone can be identified if need be, in order to prevent attacks on the security of persons and property and to combat identity fraud. This implies that people must show their faces, which is vital in the context of the international terrorist threat.

5.9The State party rejects the characterization of the Act as prohibiting Muslim women from manifesting their religious beliefs by wearing the veil and specifies that it only prohibits total concealment of the face, regardless of the reason, and allows any person in a public space to wear clothing intended to express a religious belief, such as a headscarf or turban, provided that it reveals the face. The problem here is quite different from that related to the wearing of religious symbols by public officials in the context of public service, or wearing them at school, where the neutrality of the public service is at stake. In the case in point, the ban is not based on the religious connotations of the articles of clothing concerned but solely on the fact that they conceal the full face. Only “the most radical form of clothing that makes the person invisible in public is affected”. The author can easily access public space wearing a headscarf, which would manifest her religious beliefs without concealing her face. In addition, the Constitutional Council has stated that the ban could not restrict the exercise of religious freedom in places of worship open to the public. Therefore, the measure is proportionate to its purpose and the State party has not exceeded its margin of appreciation in the present case, as confirmed by the European Court of Human Rights in the above-cited case of S.A.S. v. France. Moreover, the Court of Cassation ruled in a judgment of 5 March 2013 that the Act was in accordance with article 9 of the European Convention on Human Rights (on freedom of thought, conscience and religion). Lastly, the sanctions provided for by the Act – at most, the fine for category two offences (€150) – are modest and proportionate to the objectives pursued. With regard to the alternative sanction, a citizenship course, this is a classic penalty under French criminal law that is applicable to many offences. It serves to remind offenders about the republican values of tolerance and respect for human dignity and to make them aware of their criminal and civil responsibilities and their duties as members of society.

5.10In a circular dated 31 March 2011 addressed to prefects, the Prime Minister clarified the procedure to be followed by the police and gendarmerie when dealing with an offender, and pointed out that the Act in no way authorized officers to compel persons to uncover themselves. One cannot therefore speak of a disproportionate restriction of a person’s freedom of religion.

5.11With regard to the author’s claim of a violation of articles 12 and 26 of the Covenant, the author has failed to establish that the ban put in place by the Act targets only women who wear the full-face veil or that persons concealing their faces by some other means would not be apprehended. On the contrary, the Act provides for a general ban, does not target any specific article of clothing and makes no distinction between men and women. Moreover, the ban provided for by the Act cannot be construed as inherently discriminatory or prejudicial to freedom of movement, since there is an objective and reasonable justification for it.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any claim contained in a communication, the Committee must determine, in accordance with rule 93 of its rules of procedure, whether it is admissible under the Optional Protocol.

6.2The Committee observes that the author lodged an application concerning the same events with the European Court of Human Rights. She was informed by letter of 11 September 2014 that a single judge had declared the application inadmissible on the grounds that the conditions of admissibility laid down in articles 34–35 of the European Convention on Human Rights had not been met. The Committee recalls that, on ratifying the Optional Protocol, France entered a reservation excluding the competence of the Committee to consider cases that were being or had been examined under another procedure of international investigation or settlement.

6.3The Committee recalls its jurisprudence regarding article 5 (2) (a) of the Optional Protocolto the effect that, when the European Court of Human Rights bases a decision of inadmissibility not solely on procedural grounds but also on reasons that include a certain consideration of the merits of a case, then the same matter should be deemed to have been examined within the meaning of the respective reservations to article 5 (2) (a) of the Optional Protocol.It is therefore for the Committee to determine whether, in the case in question, the Court went beyond an examination of the purely formal criteria of admissibility when it declared the application inadmissible on the grounds that the conditions of admissibility laid down in articles 34–35 of the European Convention on Human Rights had not been met.

6.4The Committee gathers from the letter from the European Court of Human Rights invoking articles 34–35, that the author’s application did not appear to have been declared inadmissible on purely procedural grounds. However, the Committee notes that, from the succinct nature of the reasoning given by the Court, no argument or clarification regarding the decision of inadmissibility was apparently provided to the author to justify a rejection of the application based on the merits.In the light of these specific circumstances, the Committee considers that it is not in a position to determine with certainty that the case presented by the author has already been the subject of an examination, however limited, on the merits.For these reasons, the Committee considers that the reservation made by France regarding article 5 (2) (a) of the Optional Protocol does not in itself constitute an obstacle to a consideration of the merits by the Committee.

6.5With regard to the requirement for the exhaustion of domestic remedies established by article 5 (2) (b) of the Optional Protocol, the State party notes that the complaint concerning a rights violation currently before the Committee was first raised by the author in her application for review to the criminal chamber of the Court of Cassation, which found her argument inadmissible on the grounds that it should have been raised before the lower court. The State party refers to the Bikramjit Singh case to show that domestic remedies have not been exhausted.The author contests this assertion, pointing out that the Bikramjit Singh case is not comparable to her situation because her only opportunity to voice her complaints before appealing to the Court of Cassation was to raise them with the community court. In this regard, the author stresses that community court proceedings are expedited extremely quickly, are presided over by a single judge who is generally not a judge by profession and are not subject to appeal, and that she was not represented by counsel. The author further contends that her complaints were properly brought before the Court of Cassation because, like an a posteriori review of constitutionality, they raised “purely legal” arguments under article 619 of the Code of Civil Procedure.

6.6The Committee observes that the State party has not rebutted these allegations, and specifically those concerning the proceedings before the community court and their availability and effectiveness in the author’s case. The Committee further notes that the community court is a public space in which, under the Act, to wear the niqab would constitute a criminal offence and that the author did not attend the hearing. The Committee also notes that the Bikramjit Singh case did not involve criminal proceedings, in which the right of appeal must be guaranteed, and that the author in that case had the opportunity to submit his complaints to two lower courts before trying to submit new ones to the Court of Cassation. On the other hand, in the present case, the author was unable to have her complaints reconsidered on appeal before a court other than the Court of Cassation.In the light of all the information before the Committee, and in the absence of further explanation from the State party, the Committee concludes that reasonably accessible domestic remedies have been exhausted.

6.7The Committee considers that the author’s complaints, which raise issues under articles 18 and 26 of the Covenant, are sufficiently substantiated for the purposes of admissibility, declares them admissible and proceeds to consider them on the merits.

Consideration of the merits

7.1The Committee has considered the present communication in the light of all the information submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

7.2The Committee notes the author’s claims that the criminal prohibition on concealing the face in public spaces introduced by the Act and her conviction for wearing the niqab violate her rights under article 18 of the Covenant. The Committee notes the State party’s argument that the Act imposes a general ban on any article of clothing intended to conceal the face in public spaces, regardless of the form it takes or the reason for wearing it, and that the Act does not specially treat religious clothing. The Committee notes, however, that article 2 (2) broadly exempts from the Act clothing worn for health or professional reasons, or that is part of sporting, artistic or traditional festivities or events, or clothing that otherwise is legally authorized. The Committee further notes the author’s submission, not contested by the State party, that fewer than 2,000 women wear the full-face veil in France, and that the vast majority of checks under the Act have been performed on women wearing the full-face veil.

7.3The Committee recalls its general comment No. 22 (1993), in which it stated that the freedom to manifest religion or belief may be exercised either individually or in community with others and in public or private. The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the wearing of distinctive clothing or head coverings.It is not disputed that, as the author asserts, the wearing of the full-face veil is customary for a segment of the Muslim faithful and that it is part of the observance and practice of a religion. Nor is it disputed that the Act is applicable to the niqab worn by the author, who is thereby forced to give up dressing in accordance with her religious beliefs or else face sanctions. Accordingly, the Committee considers that the ban introduced by the Act constitutes a restriction or limitation of the author’s right to manifest her religion or belief, within the meaning of article 18 (1) of the Covenant, by wearing the niqab.

7.4The Committee must therefore determine whether such a restriction is authorized by article 18 (3) of the Covenant. The Committee recalls that article 18 (3) permits restrictions on the freedom to manifest religion or belief only if limitations are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.The Committee observes, moreover, that article 18 (3) is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, for instance on grounds of national security. Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner.

7.5In the present case, the Committee notes that it is not disputed that the ban on wearing the niqab falls clearly within the scope of the Act, as set out in article 1 thereof. It is therefore incumbent upon the Committee to assess whether this restriction, which is provided for by law, pursues a legitimate objective, is necessary to achieve that objective and is proportionate and non-discriminatory.

7.6The Committee notes that the State party has put forward two objectives that are purportedly pursued by the Act, namely, the protection of public safety and public order and the protection of the rights and freedoms of others.

7.7With respect to protection of public safety and order, the State party contends that it must be possible to identify all individuals when necessary, in order to prevent threats to the security of persons and property and to combat identity fraud. The Committee recognizes the need for the State party, in certain circumstances, to require individuals to reveal their face, which could entail on occasion uncovering their face in the specific circumstances of a risk to public safety or order or for identification purposes.The Committee observes, however, that the Act is not limited to such contexts, but comprehensively prohibits the wearing of certain face coverings in public at all times, and that the State party has not demonstrated how wearing the full-face veil in itself poses a threat to public safety or public order that would justify such an absolute ban. Nor has the State party provided any public safety justification or explanation for why covering the face for certain religious purposes – namely, the niqab – is prohibited, while covering the face for numerous other purposes, including sporting, artistic and other traditional and religious purposes is allowed. The Committee further observes that the State party has not described any specific context, or given any example, in which there was a real and significant threat to public safety or public order that would justify such a blanket ban on the full-face veil. Nor does the existence of such a threat appear to be mentioned in the preamble to the Act or in the National Assembly resolution of 11 May 2010, which preceded the adoption of the law.

7.8Even if the State party could demonstrate the existence of a real and meaningful threat to public safety and public order in principle, it has not demonstrated that the ban set out in the Act is proportionate to that objective, in particular in view of the numerous exceptions to the Act and its considerable impact on the author as a Muslim woman wearing the full-face veil. Nor has it attempted to demonstrate that the ban was the least restrictive measure necessary to ensure protection of freedom of religion or belief.

7.9With regard to the second objective presented by the State party, understood as the protection of the fundamental rights and freedoms of others under article 18 (3), the Committee notes the State party’s argument based on the concept of “living together”, or observance of the minimum requirements of life in society. According to the State party, showing one’s face indicates agreement to be identified by one’s interlocutor and not to “unfairly” conceal one’s state of mind, this being the “minimum level of trust required to live together in an open and egalitarian society”. The Committee also notes the author’s claim that the legislature did not clearly define such an objective, either in the Act itself or in a statement of purpose. The Committee recognizes that a State may have an interest in promoting sociability and mutual respect among individuals in its territory and, in this context, social interaction among individuals in all their diversity and thus that concealment of the face could be seen as a potential obstacle to such interaction.

7.10However, the Committee observes that the protection of the fundamental rights and freedoms of others requires identifying what specific fundamental rights are affected and the persons so affected. The exceptions in article 18 (3) are to be interpreted strictly and not applied in the abstract.In this case, the Committee observes that the concept of “living together” is a very vague and abstract term. The State party has not identified any specific fundamental rights or freedoms of others that are affected by the fact that some people present in the public space have their face covered, including fully veiled women. Nor has the State party explained why such rights would be “unfairly” obstructed by wearing the full-face veil, but not by covering the face in public through the numerous other means that are exempted from the Act. The right to interact with any person in a public space and the right not to be disturbed by the fact that someone is wearing the full-face veil are not protected by the Covenant and cannot therefore constitute permissible restrictions within the meaning of article 18 (3) of the Covenant.

7.11Even assuming that the concept of coexistence could be considered a “legitimate objective” within the meaning of article 18 (3), the State party has not demonstrated that the criminal ban on certain means of covering the face in public spaces, which is a significant restriction of the rights and freedoms of the author as a Muslim woman who wears the full-face veil, is proportionate to that objective or that it is the least restrictive means that is protective of freedom of religion or belief.

7.12In the light of the foregoing, the Committee considers that the State party has not demonstrated that the limitation of the author’s freedom to manifest her religion or belief by wearing the niqab was necessary and proportionate within the meaning of article 18 (3) of the Covenant. Accordingly, the Committee concludes that the ban introduced by the Act and the author’s conviction under that Act for wearing the niqab violated her rights under article 18 of the Covenant.

7.13As regards the author’s claims under article 26 of the Covenant, that the Act in question constituted indirect discrimination against the minority of Muslim women who wear the full-face veil, the Committee notes the State party’s argument that the ban introduced by the Act is not based on the religious connotations of the item of clothing in question but rather on the fact that it conceals the face. According to the State party, only “the most radical form of clothing that makes the person invisible in public” would be affected and, as a result, the author could access public space wearing a headscarf, which would manifest her religious beliefs without concealing her face. The Committee notes, however, that the National Assembly, in its resolution on the commitment to uphold republican values in the face of the development of radical practices that undermine them, considered that radical practices detrimental to human dignity and equality between men and women, including the wearing of a full-face veil, were contrary to the values of the Republic and that it would like the fight against discrimination and the promotion of equality between men and women to be priorities of public policy. The Committee further observes that the Act, despite being drafted in general terms, includes exceptions for most contexts of face covering in public, thus limiting the applicability of the ban to little more than the full Islamic veil and that the Act has been primarily enforced against women wearing the full-face veil. Hence, from the text of the Act, the debate preceding its adoption and its implementation in practice, the Committee observes that the Act is applied mainly to the full-face Islamic veil, which is a form of religious observance and identification for a minority of Muslim women.

7.14The Committee recalls its general comment No. 22 (1993), in whichit viewed with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they represented religious minorities that may be the subject of hostility by a predominant religious community.A violation of article 26 may result from the discriminatory effect of a rule or measure that is apparently neutral or lacking any intention to discriminate.The Committee also recalls that regulations that govern the clothing to be worn by women in public may involve a violation of a number of rights guaranteed by the Covenant, such as article 26, on non-discrimination.Yet, not every differentiation based on the grounds listed in article 26 amounts to discrimination, as long as it is based on reasonable and objective criteria,in pursuit of an aim that is legitimate under the Covenant.The Committee must therefore decide whether the differential treatment of the author, who wears the full Islamic veil, with regard to other forms of face covering authorized under the exceptions established by article 2 of the Act meets the criteria of reasonableness, objectivity and legitimacy of the aim.

7.15The Committee notes that the State party has not provided any explanation as to why the blanket prohibition on the author’s veil is reasonable or justified, in contrast to the exceptions allowable under the Act.The Committee further notes that the blanket ban on the full-face veil introduced by the Act appears to be based on the assumption that the full-face veil is inherently discriminatory and that women who wear it are forced to do so. While acknowledging that some women may be subject to family or social pressures to cover their faces, the Committee observes that the wearing of the full-face veil can also be a choice – or even a means of staking a claim – based on a religious belief, as in the author’s case.The Committee further considers that the ban, far from protecting fully veiled women, could have the opposite effect of confining them to the home, impeding their access to public services and exposing them to abuse and marginalization. Indeed, the Committee has previously stated its concern that the Act’s ban on face coverings in public places infringes the freedom to express one’s religion or belief, has a disproportionate impact on the members of specific religions and on girls, and that the Act’s effect on certain groups’ feelings of exclusion and marginalization could run counter to the intended goals.The Committee further notes that a separate provision of the Act, article 225-4-10 of the Criminal Code, criminalizes the serious offence of forcing an individual to conceal the face and thus specifically addresses that stated concern.

7.16Finally, although the State party contends that the sanctions imposed on women who decide to wear the full veil in public are “measured”, the Committee notes that the penalties have a criminal nature and have been applied against some women on multiple occasions. Such sanctions necessarily negatively affect the author’s right to manifest her religion by wearing the veil and potentially other rights.

7.17In the light of the foregoing, the Committee considers that the criminal ban introduced by article 1 of the Act disproportionately affects the author as a Muslim woman who chooses to wear the full-face veil and introduces a distinction between her and other persons who may legally cover their face in public that is not necessary and proportionate to a legitimate interest and is therefore unreasonable. The Committee hence concludes that this provision and its application to the author constitutes a form of intersectional discrimination based on gender and religion, in violation of article 26 of the Covenant.

8.The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation of the author’s rights under articles 18 and 26 of the Covenant.

9.Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated, inter alia, to provide the author with appropriate measures of satisfaction, including financial compensation, for the harm suffered. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future, including by reviewing Act No. 2010-1192 in the light of its obligations under the Covenant, in particular, under articles 18 and 26 thereof.

10.Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the Committee’s Views and to have them widely disseminated in the official language of the State party.

Annex I

Joint opinion of Committee members Ilze Brands Kehris, Sarah Cleveland, Christof Heyns, Marcia V.J. Kran and Yuval Shany (concurring)

1.We agree with the majority of the Committee that France, the respondent State, did not adequately explain a security rationale that could justify the blanket ban on Muslim religious full-face coverage, especially in the light of the exceptions for other forms of full-face coverage made under Act No. 2010-1192. We also agree with the majority that the State party has not persuasively explained how the interest of “living together” could justify compelling, under threat of criminal sanction, individuals belonging to a religious minority to dress in a manner conducive to “normal” social interaction.

2.We are more receptive, however, to the implicit claim that thefull veil is discriminatory (para. 7.15), as we consider the wearing of the full veil to be a traditional practice that has allowed men to subjugate women in the name of preserving their “modesty”,which results in women not being entitled to occupy public space on the same terms as men. We would therefore have no difficulty in regarding France as entitled – and, in fact, under an obligation, pursuant to articles 2 (1), 3 and 26 of the Covenant, as well as article 5 (a) of the Convention on the Elimination of All Forms of Discrimination against Women – to take all appropriate measures to address this pattern of conduct so as to ensure that it does not result in discrimination against women.

3.The question remains, however, whether the introduction of a blanket ban on the full-face veil in public, enforced through a criminal sanction imposed on the very women such a ban would purport to protect, is an appropriate measure in the circumstances of the present case – that is, whether it was a reasonable and proportional measure directed against the author and other Muslim women. On this matter, we are of the view that the State party has not demonstrated to the Committee that less intrusive measures than the blanket ban, such as education and awareness-raising against the negative implications of wearing the full-face veil, criminalizing all forms of pressure on women to wear such a veil and a limited ban enforced through appropriate non-criminal sanctions on wearing the full veil in specific social contexts, underscoring the State’s opposition to the practice (such as prohibiting the full-face veil for teachers in public schools or government employees addressing the public), would not have resulted in sufficient modification of the practice of wearing the full veil, while respecting the rights to privacy, autonomy and religious freedom of the women themselves, including those who choose to wear the veil.

4.Given the harsh consequences of the full ban on the ability of women who choose to wear the veil to move freely in public, we are not in a position to accept the Act as a reasonable and proportionate measure compatible with the Covenant. We believe that our position on the high threshold for justifying a ban on clothing chosen by women is generally consistent with the relevant parts of the judgment of the European Court of Human Rights in S.A.S. v France, in which the Court rejected a justification of the ban on the grounds of, among others, anti-discrimination.

Annex II

Joint opinion of Committee members Ilze Brands Kehris and Sarah Cleveland (concurring)

1.We concur with the majority opinion. Regarding the stated aim of promoting public safety and order, we consider that the State party has not only failed to establish a comprehensive, significant and specific threat that would justify a blanket ban on wearing the full-face veil in public, but has also not explained in which ways the State party’s previously existing legislation providing for uncovering one’s face in public space for specific purposes or at specific times, such as security checks and identity checks, or in specific locations, such as schools and hospitals – which are not contested here – is not adequate to ensure public safety and order. Thus, in addition to the criminal nature of the sanction and its effect on the author and those Muslim women who, like her, choose to wear the full-face veil, which is not proportionate to the stated aim (para. 7.11), this blanket ban has not been shown to be either necessary or proportionate to its stated legitimate aim of promoting public safety.

2.With respect to protecting the fundamental rights and freedoms of others and the concept of “living together” that the State party relates to this aim, there is a lack of clarity regarding which fundamental rights are specifically intended to be protected (para. 7.10). The State party’s position is also unclear on how respect for the rights of persons belonging to minorities, including religious minorities, are taken into account in this concept in order to safeguard the value of pluralism and avoid the abuse of a dominant position by the majority.This reinforces the doubts about the claim that the concept of “living together” constitutes a legitimate aim under the fundamental rights and freedom of others in article 18 (3) of the Covenant.

3.Although the State party does not explicitly refer to equality between men and women in its arguments, in the background documents from the national debates and the preparatory work in the National Assembly, equality figured as a significant factor in the adoption of this legislation. In this regard, the argument that the full-face veil is inherently oppressive and stems from the patriarchal subjugation of women, which intends to prevent them from participating as equals in society, is relevant. However, in view of the fact that another criminal provision in article 4 of the same Act, which is not contested, penalizes the serious offence of compelling a person to wear such a veil, the argument as applied to the comprehensive ban on wearing the veil seems to imply that whenever a woman dons a full-face veil it cannot be her own informed and autonomous decision, which may reinforce a stereotype that Muslim women are oppressed. Penalizing wearing the full-face veil in order to protect women could thus, instead of promoting gender equality, potentially contribute to the further stigmatization of Muslim women who choose to wear the full-face veil, as well as more broadly of Muslims, based on a stereotypical perception of the role of women among Muslims. In any case, the State or the majority’s view that the practice is oppressive must accommodate the author’s own explicit choice to wear certain clothing in public to manifest her religious belief.The equality argument is thus not convincing as a legitimate aim for a blanket prohibition of full-face veils in all public spaces in France.

4.Finally, the present Views take into account the specific context of the case in France, including the fact that a very small number of women have chosen to wear the full veil. Apart from the inherent vulnerability to negative stereotyping of members of a minority – indeed, a minority within a minority – the disproportionality of the legislative measures that were adopted and implemented purportedly to promote respect for the rights of others is thus particularly acute in a context in which there is a very low likelihood that any person would encounter a fully veiled woman in a public space. For the same reason, disseminating awareness-raising leaflets to the general public regarding the law and criminalizing the wearing of the niqab and burka may have the unintended effect of increasing prejudice and intolerance towards this minority group.

Annex III

Individual opinion of Committee member Yadh Ben Achour (dissenting)

1.In both cases set out in communications Nos. 2747/2016 and 2807/2016, the Committee notes that the State party, by adopting Act No. 2010-1192 of 11 October 2010, prohibiting the concealment of the face in public, has violated the rights of the authors under articles 18 and 26 of the Covenant. I regret that I am unable to share this opinion for the following reasons.

2.First, I am surprised at the Committee’s statement that “the State party has not demonstrated how wearing the full-face veil in itself poses a threat to public safety or public order that would justify such an absolute ban”. I shall not dwell on the threat to public safety, which appears self-evident given the ongoing battle against terrorists, some of whom have carried out attacks and assassinations in France and elsewhere disguised with niqabs. Security considerations alone justify both prohibition and criminalization. I shall, however, spend more time on the meaning of the phrase “protect order” read conjointly with “protect the morals or the fundamental rights and freedoms of others” in article 18 (3) of the Covenant.

3.In that article, the term “order” clearly refers to that of the State at the origin of the restriction. In France, under its Constitution, the order is republican, secular and democratic. Equality between men and women is among the most fundamental principles of that order, just as it is among the most fundamental principles of the Covenant. The niqab in itself is a symbol of the stigmatization and degrading of women and as such contrary to the republican order and gender equality in the State party, but also to articles 3 and 26 of the Covenant. Defenders of the niqab reduce women to their primary biological status as females, as sexual objects, flesh without mind or reason, potentially to blame for cosmic and moral disorder, and in consequence obliged to remove themselves from the male gaze and thus be virtually banished from the public space. A democratic State cannot allow such stigmatization, which sets them apart from all other women. Wearing the niqab violates the “fundamental rights and freedoms of others” or, more precisely, the rights of other women and of women as such. Its prohibition is therefore not contrary to the Covenant.

4.I agree with the Committee that the restrictions provided for under article 18 (3) must be interpreted strictly. However, “strictly” does not mean that the restrictions need not respect the other provisions of the Covenant, or the spirit of article 18 itself, as I have explained in the preceding paragraph.

5.The Committee admits in both cases that “wearing the niqab or the burka amounts to wearing a garment that is customary for a segment of the Muslim faithful and that it is the performance of a rite or practice of a religion”. However, the Committee does not explain the mysterious transformation of a custom into a religious obligation as part of worship, within the meaning of article 18 of the Covenant. The truth is that the wearing of the niqab or the burka is a custom followed in certain countries called “Muslim countries” that, under the influence of political Islamism and a growing puritanism, has been artificially linked to certain verses from the Qur’an, in particular to verse 31 of the Surah of Light and verse 59 of the Surah of the Confederates. However, the most knowledgeable authorities on Islam do not recognize concealing the face as a religious obligation. Even allowing, as the Committee wishes to do, that the wearing of the niqab may be interpreted as an expression of freedom of religion, it must not be forgotten that not all interpretations are equal in the eyes of a democratic society that has founded its legal system on human rights and the principles of the Universal Declaration of Human Rights and of the Covenant, and that has enshrined the principle of secularism within its Constitution – all the more so given the particular historical and legal context of France. Certain interpretations simply cannot be tolerated.

6.The same holds true for polygamy, excision, inequality in inheritance, repudiation of a wife, a husband’s right to discipline his wife and levirate and sororate practices. All those constitute, for their practitioners, religious obligations or rites, just as wearing the full-face veil does for followers of that custom. But the Committee has always considered the former practices to be contrary to the provisions of the Covenant and has consistently called on States to abolish them. Surely then, it is contradictory to decide in one case that it is the prohibition of one such practice, which undermines equality between citizens and the dignity of women, that contravenes the Covenant, while deciding in another case that it is the practices that contravene article 18?

7.A more serious problem must be raised. It concerns the concept of “living together” championed by France, which led to the adoption of the Act. I entirely disagree with the Committee that “the concept of ‘living together’ is presented by the State party in very vague and abstract terms” and that “the State party has not identified any specific fundamental rights or freedoms of others that are affected”. On the contrary, the preamble to the Act deals fully with this issue and clearly states that concealment of the face goes against the social contract, basic good manners and the notions of fraternity and living together. Unfortunately, the Committee fails to note that the fundamental right that is violated in this instance is not that of a few individuals, nor of any particular group, but the right of society as a whole to recognize its members by their faces, which are also a token of our social and, indeed, our human nature. Contrary to the Committee’s assertions, the concept of living together is neither vague nor abstract, but rather, precise and specific. It is founded on the very simple idea that a democratic society can only function in full view of all. More generally, as I have already suggested, the most basic human communication, preceding language of any other kind, is conveyed by the face. By totally and permanently concealing our faces in public, especially in a democratic context, we renounce our own social nature and sever our links with our peers. To prohibit the wearing of the full-face veil and penalize it with a small fine is therefore neither excessive nor disproportionate. In this connection, there can be no comparison between the hijab and the niqab. The two are essentially different.

8.By considering that “the criminal ban introduced by article 1 of the Act disproportionately affects the author as a Muslim woman who chooses to wear the full-face veil and introduces a distinction between her and other persons who may legally cover their face in public that is not necessary and proportionate to a legitimate interest and is therefore unreasonable”, the Committee is simply turning rights upside down. It concludes from this reasoning that article 1 of the Act constitutes a kind of intersectional discrimination based on sex and religion that violates article 26 of the Covenant. Yet there is no doubt that prohibition is necessary, if only because of the threat to security (para. 2 above); it is also proportionate, as shown by the light penalty: a fine of €150 and a course in citizenship, richly deserved given the seriousness of the infringement of equality between citizens and of the dignity of women.

9.Let us now turn to the question of those persons who, unlike women who wear the full-face veil, are authorized by the Act to cover their faces. This, according to the Committee’s Views, constitutes discrimination under article 26 of the Covenant. These are the persons referred to in article 2 (2) of the Act, which establishes exceptions to the prohibition. Can these exceptions be placed on an equal footing and compared with the practice of wearing the full-face veil? Is article 2 of the Act discriminatory within the meaning of article 26? I do not think so. These exceptions, generally speaking circumstantial and temporary, are for the most part made for recreational, festive, carnival or sporting purposes, or are required for service or security purposes, in particular road safety. They exist in all countries and in no way constitute discriminatory symbols or messages likely to trigger implementation of article 26 of the Covenant, as the full-face veil would.

10.I conclude that the prohibition of the wearing of the full-face veil and its penalization by fine, especially in the French context, is neither contrary to article 18 nor to article 26 of the Covenant.

Annex IV

Individual opinion of Committee member José Manuel Santos Pais (dissenting)

1.I regret not being able to share the conclusion, reached by the majority of the Committee, that the State party violated the author’s rights under articles 18 and 26 of the Covenant.

2.Communications Nos. 2747/2016 and 2807/2016 concern the use of the niqab and are the first of their kind to be considered by the Committee. The issue is a very sensitive one and a solution should therefore be reached thoughtfully, due to its far-reaching implications.

3.Significantly enough, the two complaints do not concern an Islamic State, but a European one with a strong democratic tradition and an impressive human rights record. Possible solutions are dilemmatic, since persuasive arguments can be invoked both for and against finding a violation of certain rights. Decisions in both cases will have, apart from the underlying legal issues, a significant political impact, not only for France, but for many other countries in Europe, Africa and Asia, where the problem of the use of the niqab may also arise. The question was thus to find a solution that minimized the harm, while taking into account all the relevant factors and preventing the risk of any unwarranted and abusive interpretation of the Committee’s decision.

4.I tend to consider the complaints in both cases as mostly artificial, using the argument of a restriction of freedom of thought, conscience and religion as a means to address what is foremost a political problem. The authors never explain which religious prescriptions impose the use of the niqab on them or which part of the Qur’an they base their conclusions on. Yet they acknowledge that wearing the niqab or the burka amounts to wearing a garment that is customary for a segment of the Muslim faithful and is an act motivated by religious beliefs. Therefore, it concerns the observance and practice of a religion, notwithstanding the fact that wearing the niqab or the burka is not a religious requirement common to all practising Muslims (para. 3.2). We are therefore facing a religious custom, not an undisputed religious obligation.

5.The Committee has in the past refused to accept as violations of the provisions of the Covenantcertain social or religious customs and practices that run counter to human rights (female genital mutilation, honour and ritual killings, attacks against persons with albinism and many others). Therefore, the fact that the authors invoke a violation of their religious beliefs does not necessarily lead to the conclusion that their rights have been violated.

6.Both authors are nationals of France born and domiciled in France. Yet, they refuse to abide by the prevalent legislation of the State party concerned, although they acknowledge that they belong to a minority of Muslim women who wear the full-face veil. According to a parliamentary commission that studied the matter, fewer than 2,000 women are concerned (paras. 3.3 and 3.14), which constitutes a tiny minority (para. 3.9). They consider that such a tiny minority can impose their beliefs on the rest of the population, but do not wish to acknowledge the same right to the rest of the population, which, in terms of a proportionality test, seems quite disturbing, especially as both authors can use, still within the observance of their religious beliefs, other less rigorous and extreme forms of dressing, such as a headscarf. This extreme and radical form of religious belief should, in my view, be considered with caution so as to allow the Committee to reach a fair and reasonable decision, which unfortunately, in the present case, did not occur.

7.When one encounters a given society, the need for respecting its habits and customs should be a natural concern, as well as respect for social predominant values. Even more so, when one has a standing relationship with such a society, as is the case for both authors. Yet the authors refuse to accept this.

8.It falls within the legitimate powers of each State to democratically define the legislative framework of their societies, while respecting their international obligations. The State party has carefully done so. Act No. 2010-1192 was passed unanimously (bar one vote) by the National Assembly and Senate after a wide-ranging democratic debate. A parliamentary task force was set up involving elected representatives from across the political spectrum, which proceeded to hear many persons of diverse opinions, including both Muslim and non-Muslim women and persons from civil society (para. 5.1).On 11 May 2010 – prior to the adoption of the law – the National Assembly adopted a resolution in which it said that radical practices detrimental to human dignity and equality between men and women, including the wearing of a full-face veil, were contrary to the values of the Republic, and called for the implementation of all possible measures to ensure the effective protection of women subjected to violence or pressure, including by being forced to wear a full-face veil (para. 5.2).

9.The general ban introduced by the Act is limited in scope, given that only the concealment of the face is prohibited. Sanctions are measured, lawmakers having prioritized the role of education (para. 5.3).The ban covers any article of clothing intended to conceal the face in public spaces, regardless of the form it takes or the reason for wearing it (para. 5.5),and does not target any specific article of clothing and makes no distinction between men and women (para. 5.11).Therefore, no special treatment is reserved for garments worn for religious or cultural reasons and only the most radical form of clothing that makes the person invisible in public is affected. The ban cannot restrict the exercise of religious freedom in places of worship open to the public (para. 5.9).Exemptions from the Act include clothing worn for health or professional reasons, or as part of sporting, artistic or traditional festivities or events, including religious processions, or that otherwise is legally authorized (para. 7.2),which confirm the general and reasonable character of the ban. A circular of 2 March 2011 provided a comprehensive explanation of the scope and modalities for the application of the law, complemented by a campaign in public places and a leaflet available in government offices, as well as an educational website. Moreover, the law provided for a period of six months from the time of its enactment to its entry into force to meet the predictability requirement (para. 5.6).

10.The Act pursues a legitimate aim, the protection of the rights and freedoms of others and the protection of public order, as clearly defined in the Act’s preamble, which reaffirms the values of the Republic and the requirements of living together (para. 5.7).The European Court of Human Rights, in its judgment in S.A.S. v. France, accepted the observance of the minimum requirements of life in society as part of the protection of the rights and freedoms of others and so concluded that the ban imposed was proportionate to the aim pursued (paras. 140–159).

11.Public safety and public order require that everyone can be identified if need be, to prevent attacks on the security of persons and property and to combat identity fraud. This implies that people must show their faces, a vital concern in the context of current international terrorist threats (para. 5.8).The Committee, failing to address the underlying problem properly, does not seem to have sufficiently weighed this last requirement (para. 7.7).

12.It is true that the European Court of Human Rights, in its judgment in the S.A.S. v. France case, dismissed the argument that the ban was necessary in a democratic society for public safety, since “a blanket ban on the wearing in public places of clothing designed to conceal the face can be regarded as proportionate only in a context where there is a general threat to public safety” (para. 139). However, since the judgment was delivered, France has experienced several terrorist attacks by Al-Qaida and Da’esh: Île-de-France in January 2015 (20 killed and 22 injured), Paris in November 2015 (137 killed and 368 injured) and Nice in July 2016 (87 killed and 434 injured). In 2017, a total of 205 foiled, failed and completed terrorist attacks were reported by nine European Union member States (France experienced 54 attacks). In 2017, a total of 975 individuals were arrested in the European Union for terrorism-related offences. Most arrests (705 out of 791) were related to jihadist terrorism (123 women, of whom 64 per cent held the citizenship of a European Union member State and were born in the Union). France alone accounted for 411 arrests and 114 convictions. As for the number of suspects arrested for religiously inspired/jihadist terrorism (705), France accounted for 373.In this context, it is of extreme importance to quickly identify and locate possible suspects, since they travel through different countries to arrive at their destination and may avail themselves of the niqab to go unnoticed. Therefore, in the current circumstances, the ban imposed seems proportionate to the aim pursued by the Act, although it should be subject to periodic risk assessments (art. 7 of the Act).

13.In contrast to the view of the majority of the Committee (para 7.16), I believe that the sanctions are measured. Although they are of a criminal nature in France, in other countries they would probably be administrative fines. Sanctions comprise a category two fine (maximum €150), a moderate sanction that can, however, be replaced by a mandatory citizenship course. If, however, the person refuses to abide by the law, what should the State do? Accept such a behaviour? In the Yaker case, the author was sentenced twice, the second time because she refused to remove her full-face veil at the security checkpoint to enter the court. Is it reasonable to force a judge to accept persons that they are going to judge to have their faces covered during a trial? Such a demand will probably not be accepted in any court, in whichever country. Furthermore, both cases were tried by a community court, which confirms, if need be, the minor gravity of the violation. Sanctions are thus not disproportionate.

14.Finally, as regards the allegation that penalties have been imposed in particular on Islamic women, the reason seems obvious: they violated the ban. Would one consider, for instance, the prosecution of drunk drivers or drug traffickers as disproportionately affecting them? Is this not just the result of law enforcement policy?

15.I would therefore conclude that articles 18 and 26 of the Covenant were not violated. Rejecting the ban could, regrettably, be seen by some States as just a step away from accepting the imposition of a full-face veil policy.