CEDH · CASELAW;CLIN;ENG — 26 novembre 2015

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France - 64846/11 Judgment 26.11.2015 [Section V] Article 9 Article 9-1 Manifest religion or belief Non-renewal by hospital of contract of employment on account of refusal to remove headscarf: no violation Facts – In 1999 the applicant was recruited on a fixed-term contract within the public hospital service as a social worker in the psychiatric department of a public hospital. In 2000 she was informed that her contract would not be renewed. That decision was based on her refusal to remove her veil and complaints made by a number of patients at the centre. It had been preceded by an interview during which the applicant had not been criticised for her religious affiliation but merely reminded of the rights and obligations of civil servants, namely, a prohibition on displaying one’s religious affiliation. The non-renewal of the contract was based on an opinion of the Conseil d’État indicating that the principle of the secular nature of the State and that of the neutrality of public services applied to all public services. It observed that civil servants had to enjoy freedom of conscience but that this freedom had to be reconciled, in terms of its expression, with the principle of neutrality of the public service, which precluded the wearing of a symbol displaying one’s religious affiliation. Furthermore, in the event of a breach of that obligation of neutrality, it stated that the consequences in terms of disciplinary proceedings had to be assessed on a case-by-case basis according to the particular circumstances. Appeals lodged by the applicant were dismissed. In 2001 the applicant was enrolled by the establishment that had employed her in a competition to recruit social assistants. She did not sit the competition. Law – Article 9: The non-renewal of the applicant’s contract amounted to an interference with her right to manifest her religion. That interference had been prescribed by law and pursued the legitimate aim of protecting the rights and freedoms of others. The aim in the present case had been to maintain respect for all religious beliefs and spiritual orientations of the patients, who used the public service and benefited from the requirement of neutrality imposed on the applicant, by ensuring strict equality among them. The objective had also been to ensure that users enjoyed equality of treatment without any distinction on religious grounds. Consequently, the restriction had pursued the aim of protecting the rights and freedoms of others and did not necessarily have to be motivated, further, by public-safety constraints or protection of public order. With regard to the necessity of the measure in question, it should be noted that the authorities had informed the applicant of the reasons why this principle justified special application to a social worker in a psychiatric department of a hospital. The authorities had identified problems created by her attitude within the department in question and had attempted to persuade her to refrain from displaying her religious convictions. Furthermore, the lower courts had considered that the requirement of neutrality imposed on the applicant was even stricter in that she was in contact with patients in a fragile or dependent state. It could be seen from the file that it was the requirement of protecting the rights and freedoms of others, namely, respect for everyone’s freedom of religion, and not her religious convictions, that had been the basis for the decision in question. From that point of view, the neutrality of the public hospital service could be regarded as bound up with the attitude of the staff and requiring that patients were left in no doubt as to their impartiality. In France public servants enjoyed the right to respect for their freedom of conscience which prohibited, among other things, any discrimination based on religion in access to functions or career progression. They were, however, forbidden to manifest their religious beliefs in discharging their duties. The fact that the national courts had afforded greater weight to the principle of secularism-neutrality and to the State’s interest than to the applicant’s interest in not having the expression of her religious beliefs curtailed did not create a problem with regard to the Convention. This was a strict obligation which had its roots in the traditional relationship between the secular nature of the State and freedom of conscience, as stipulated in Article   1 of the Constitution. According to the French model, on which it was not the Court’s task to rule as such, the neutrality of the State was binding on the officials representing it. It was, however, the administrative courts’ task to ensure that the authorities did not disproportionately interfere with the freedom of conscience of civil servants where State neutrality was invoked. The applicant, for whom it was important to manifest her religion by visibly wearing a headscarf on grounds of her religious convictions, had exposed herself to the serious consequence of disciplinary proceedings. However, there was no doubt that, following the opinion of 3 May 2000, she had been aware that she had to observe a neutral dress code in discharging her functions. It was owing to her refusal to comply with that obligation, and irrespective of her professional qualities, that disciplinary proceedings were instituted against her. She had then had the benefit of the safeguards relating to disciplinary proceedings and remedies before the administrative courts. Moreover, she had chosen not to sit the competition to recruit social assistants despite having been enrolled on the list of candidates that the establishment had drawn up in full knowledge of the facts. In those circumstances the national authorities had not exceeded their margin of appreciation in finding that there was no possibility of reconciling the applicant’s religious convictions with the obligation to refrain from manifesting them, and in deciding to give precedence to the requirement of neutrality and impartiality of the State. Furthermore, it could be seen from a report by the Observatory of Secularism that disputes arising from the manifestation of religious convictions of persons working within hospital services were assessed on a case-by-case basis with the competing interests being reconciled by the authorities in an effort to find friendly settlements. That willingness to reconcile competing interests was confirmed by the very low number of disputes of that kind that had been brought before the courts. Lastly, hospitals were a place where users, who despite their right to freedom to express their religious convictions, were also required to contribute to implementing the principle of secularism by refraining from any act of proselytism and complying with the organisation of the service and the requirements of health and hygiene in particular. In other words, the State regulations concerned gave precedence to the rights of others, the equality of treatment of patients and the functioning of the service over manifestations of religious beliefs. Conclusion : no violation (six votes to one). (See the Factsheet on Religious symbols and clothing )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes