Violation is recognised
In 2011, the author was stopped for an identity check while wearing her niqab. She was then prosecuted and convicted of the minor offence of wearing an article of clothing intended to conceal the face in a public.
The author claimed that 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.
FoRB violation – Manifestation: worship, observance, practice, teaching
The Committee recalled its general comment No. 22, 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.
The author’s statement that the wearing of the full veil is customary for a segment of the Muslim faithful and that it concerns the performance of a rite and practice of religion is not in question. It is also undisputed that Act No. 2010- 1192, prohibiting garments intended to conceal the face in public, is applicable to the niqab worn by the author, who as a result is forced to renounce the clothing that corresponds to her religious approach or risk penalties.
Accordingly, the Committee considers that the ban introduced under the Act constitutes a restriction or limitation of the author’s freedom to manifest her beliefs or religion — by wearing her niqab — within the meaning of article 18 (1) of the Covenant’.
(2)The Committee also recalled that ‘paragraph 3 of article 18 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, such as 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’.
(3)It further noted that, ‘Even assuming that the concept of living together could be considered a “legitimate objective” in the sense of article 18 (3), the Committee observes that the State party has failed to demonstrate that the criminal ban on certain means of covering of the face in public, which constitutes 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 aim, or that it is the least restrictive means that is protective of religion or belief.
In the light of the foregoing, the Committee considers that the State party has failed to demonstrate that the limitation of the author’s freedom to manifest her religion or beliefs, through the wearing of the niqab, was necessary and proportionate within the meaning of article 18 (3) of the Covenant. The Committee therefore concludes that the ban introduced by Act No. 2010-1192 and the conviction of the author under said Act for wearing the niqab violated the author’s rights under article 18 of the Covenant’.