March 06, 2012
In January this year the organization United Sikhs held a press conference about the decision in the case Ranjit Singh v. France brought by them before the UN Human Rights Committee. This decision about the wearing of a Sikh turban on an identity document is more than interesting from the perspective of Strasbourg jurisprudence since the European Court of Human Rights dealt with exactly the same issue concerning the same country some years ago in the case of Mann Singh v. France. Yet, both decisions are completely opposite to each other. In the case of Ranjit Singh v. France the UN Human Rights Committee concluded to a violation of the freedom of religion of the applicant, whereas the European Court of Human Rights declared the similar case of Mann Singh v. France manifestly ill-founded and thus inadmissible.
Background of the case Ranjit Singh v. France
Mr. Ranjit Singh is an Indian national who obtained refugee status in France in 1992. His permanent residence permit was due for renewal in 2002 and he therefore submitted an application to renew his permit, providing the authorities with two photographs. The French authorities refused these photographs as they failed to meet the requirements set in a French Decree governing the conditions applying to foreign nationals’ admission to and residence in France, which stipulates that individuals must appear full face and bareheaded on the photographs destined for the residence permits. The applicant’s request for an exemption from this provision was rejected.
Before the UN Committee, the applicant alleges that his freedom of religion, guaranteed by article 18 of the ICCPR, is violated. He argues that compelling him to remove his turban on his ID photograph is unnecessary and disproportionate to the aim of guaranteeing the public order and safety put forward by France. The applicant points out that no objection is made to “a beard covering half of the face” and he notes that other European countries such as Belgium, Germany and Italy accept turbans on ID cards and he thus finds it “difficult to understand how a person wearing a turban can be considered identifiable in some European countries but not in France”. Moreover, the applicant explains, since he wears a turban all the time he would be “more readily identifiable from a photograph showing him wearing a turban than from one showing him bareheaded”. The applicant also complains about the repeated humiliation he would undergo every time he has to show his residence permit to authorities and every time he is ordered to remove his turban for the ease of comparison with the photograph, a situation which is not unthinkable. Finally, Mr. Singh also alleges to be discriminated against since he “is compelled to choose between his religious duty and access to public health-care system, a choice which most French citizens are not forced to make. ”
Similar Strasbourg cases
As mentioned above, France argues that this rule pursued the aim of protecting public order and safety. Remarkably France refers in its argumentation to the inadmissibility decisions Karaduman v. Turkey, Phull v. France, El Morsli v. France and Mann Singh v. France issued by the Strasbourg Court. In Karaduman v. Turkey, the former European Commission of Human Rights found that the refusal by the University administration to provide a student with her degree certificate, on the ground that she wore her Islamic veil in the photographs she submitted to obtain this certificate, did not constitute an interference with her right to freedom of religion. The Commission argued that “(t)he purpose of the photograph affixed to a degree certificate is to identify the person concerned. It cannot be used by that person to manifest his (sic) religious beliefs. ” In Phull v. France the Strasbourg Court concluded that the claim of a Sikh who was compelled to remove his turban during a security check at an airport was manifestly ill-founded since it considered the removal of the turban without any doubt to be necessary for the safeguard of the public safety. Likewise, the Court came to the same conclusion in El Morsli v. France, this time concerning a woman compelled to remove her headscarf in a consulate. But the most comparable case is Mann Singh v. France, concerning a French Sikh whose request for renewal of a drivers license was rejected also because he submitted photographs in which he appeared wearing a turban. Also this case was declared manifestly ill-founded and thus inadmissible. The Strasbourg Court argued that the requirement to appear bareheaded on the ID photograph was necessary for safeguarding public order and safety since the authorities must be in the possibility to control the identity of the driver and to check whether he is allowed to drive a vehicle. The Court “underlines” in this case, that the requirement to appear bareheaded on ID documents is even more relevant since there is a higher risk of fraud and falsification when it concerns driving licenses. Finally the Court stressed that it concerns only an occasional measure that falls within the ambit of the State’s margin of appreciation.
Fortunately the UN Human rights Committee chose not to follow this line of reasoning of the Strasbourg Court. Unlike the Strasbourg Court, the Committee asks the questions the Court did not ask in the case of Mann Singh and in the other cases where applicants were compelled to remove religiously motivated headgear. Does a turban on an ID document make the identification of the person on the picture more difficult? Should someone look the same in a picture as he looks in daily life? Is there really a higher risk of fraud and falsification, as the State argues, and what has headgear got to do with that? In this case the Committee observes that:
“the State party has not explained why the wearing of a Sikh turban covering the top of the head and a portion of the forehead but leaving the rest of the face clearly visible would make it more difficult to identify the author than if he were to appear bareheaded, since he wears his turban at all times. Nor has the State party explained how, specifically, identity photographs in which people appear bareheaded help to avert the risk of fraud or falsification of residence permits. Consequently, the Committee is of the view that the State party has not demonstrated that the limitation placed on the author is necessary within the meaning of article 18, paragraph 3, of the Covenant”.
Moreover, the UN Committee also nuanced the idea that the infringement of the applicant’s freedom only occurred occasionally, namely at the moment that he had to take the picture:
“even if the obligation to remove the turban for the identity photograph might be described as a one-time requirement, it would potentially interfere with the author’s freedom of religion on a continuing basis because he would always appear without his religious head covering in the identity photograph and could therefore be compelled to remove his turban during identity checks.”
The Committee thus concludes that the right to freedom of religion of the applicant has been violated. France is consequently under an obligation to provide the applicant with a remedy and it “is also under an obligation to take steps to prevent similar violations in the future.”
This case does not only show a more understanding approach towards the applicant in this case, but his right to freedom of religion is also taken more seriously. Like article 18 of the ICCPR, article 9 ECHR requires limitations to the freedom of religion of individuals to be proportionate and necessary to one or more of legitimate aims, such as the public order and safety. However, the Court very often does not ask the right necessity questions in these kind of cases. In Phull, the question was not whether a security check is necessary for guaranteeing the aim of public safety, but whether compelling an individual to remove his turban during a security check was necessary to reach that aim. Or in Mann Singh, the question was not whether identity control is necessary to protect the public safety: the Court should have examined more thoroughly whether wearing a turban on a drivers license made it more difficult to identify the driver. Another approach would undermine the right protected in article 9 as the succeeding inadmissibility decisions on the basis of manifest ill-foundedness in freedom of religion cases clearly proof.
Judicial borrowing takes more and more place between the several international Human Rights bodies. This might be a welcome phenomenon in order to create consistency in the application of universal human rights. However, I am happy the Committee chose not to follow the reasoning of the European Court of Human Rights in this case. Instead, I hope that the Committee’s decision may be a source of inspiration for future Strasbourg case-law.