November 19, 2013
The name Mann Singh will probably ring a bell with those who are familiar with the case law of the European Court of Human Rights. In Mann Singh v. France (ECHR, 13/11/2008/, no 4479/07), the Strasbourg Court was confronted with the question whether the French obligation to appear bareheaded on photographs on identity documents was compatible with the rights protected by the European Convention on Human Rights. In the case discussed in this post, the same applicant is involved, however, this time he made a claim concerning the prohibition to wear a turban on the photograph on his passport (instead of his driver’s license) and more importantly, he brought his claim in front of the UN Human Rights Committee (hereafter HRC). The same applicant going with almost the same claim to different human rights bodies is quite an exceptional situation.
In (Mann) Singh v. France (HRC, 26/09/2013, CCPR/C/108/D/1928/2010), the Human Rights Committee employs the same reasoning as in a previous case, Ranjit Singh v. France, concerning the same subject matter. (see blog post on Ranjit Singh) Completely in opposition to the jurisprudence of the European Court of Human Rights, the HRC decides again that prohibiting a Sikh to wear a turban on the identity photograph, without convincingly explaining how such a measure is necessary for guaranteeing the public safety, violates the individual’s right to manifest his religion (article 18 of the ICCPR). After first acknowledging the importance of identification for the public safety, the HRC nevertheless observes that France did not explain why the wearing of a turban —which covers only the top of the head, “but leaves the face clearly visible”— would render the identification of an individual more difficult. The HRC further observes that the state did not explain how identification would be made easier with an identity photograph on which a person appears bareheaded while in his day-to-day life he always wears a turban, and how this would diminish the risk of falsification of identity documents.
UN Human Rights Committee v. Strasbourg Court
Now that both the Strasbourg Court and the UN HRC were confronted with the same applicant making almost the same claim, the contrast in approach of the Human Rights bodies appears even more striking. In contrast to the European Court of Human Rights who famously dismissed Mann Singh’s case as being manifestly ill-founded without a thorough examination of the applicant’s claim and relying on the State’s margin of appreciation, the UN HRC, although acknowledging the importance of identification measures, requires the state to prove that the measure is truly necessary to guarantee the public safety. Hence, once more, like in the cases of Ranjit Singh v. France and Bakramjit Singh v. France (see post on Bakramjit Singh here), the HRC unequivocally communicates that States cannot infringe one’s right to manifest his or her religion, without bringing convincing reasons to do so.
With the cases of Ranjit Singh, Bakramjit Singh and now Mann Singh v. France, we can say that applicants are increasingly finding their way to the Human Rights Committee with their religious claims. Following these successful precedents future applicants might find it strategically more apt to go to the UN body than to go to the European Court of Human Rights despite the fact that the HRC, with its legally non binding communications, offers lower protection than the Strasbourg Court. The latter is illustrated, not surprisingly, in the case of Ranjit Singh (2011), with the total silence of France following the decision, despite the HRC’s urge to amend the disputed legislation.
Nevertheless, despite the potential absence of a de facto follow-up of the current decision, and thus specific redress of the human rights violation, what the HRC at least gives the applicant is recognition. Other than the fact that the HRC found a violation of Mann Singh’s right to manifest his religion, by thoroughly examining and balancing the interests at stake, and by also including the applicant’s perspective, the HRC acknowledges that Mann Singh’s argument is also worthy of consideration. Thus, the HRC’s decision indirectly conveys a message of understanding and respect. On the contrary, it can be argued that the European Court of Human Rights gave Mann Singh the opposite message in 2008. By one-sidedly accepting the legitimate aim put forward by the state without examining the applicant’s claim and by relying on the margin of appreciation, the European Court of Human Rights did not give sufficient attention to the applicant’s claim and as such did not recognize or at the least gave the impression not to understand the importance of the applicant’s concerns.
Impact on Strasbourg case law?
This divergent approaches leave us with the question whether this line of reasoning will have an impact on the Strasbourg Court’s future reasoning in freedom of religion cases. As an independent institution the Strasbourg Court is not under the obligation to follow the HRC’s approach, but the Court cannot simply ignore the increasing amount of cases going to the HRC. The least that can be said on the Strasbourg Court’s jurisprudence concerning freedom of religion is that it is not predictable. While the case of Jakobski v. Poland (See earlier post), gave reasons to believe that the Court’s attitude towards religious claims was changing, the case of Sessa v. Italy (See previous post) proved that this could not be assumed. This year, however, in Eweida a.o. v. the UK, in the cases of the two first applicants Eweida and Chaplin, (see also the post of Lourdes Peroni on this part of the case) the Court strongly emphasized that despite the margin of appreciation of the state in matters of religious accommodation, a balance must be struck between the interests of all parties. This approach goes already along the same lines, with the approach of the UN Human Rights Committee in the cases discussed above.
Several human rights debates about religious claims – e.g. the discussions on religious garment in schools and in the workplace, on circumcision of male babies and on ritual slaughter –are still persistent today. At some point, these claims will probably end on the table of human rights bodies such as the European Court of Human Rights and the Human Rights Committee. I wonder though on whose plate the claims will end up, because, at least for now, it matters.
 See also Amélie Barass, Transnational Understandings of Secularisms and Their Impact on the Right to Religious Freedom —Exploring Religious Symbols Cases at the UN and ECHR, Journal of Human Rights, 2012, 11:273.
 See also Brems, Bribosia, Rorive and van Drooghenbroeck, Le port de signes religieux dans l’espace public: verité à Strasbourg, erreur à Genève?, Journal des Tribunaux, 2012, 602-603.