Pavel Barkovsky v. Belarus

The author of the communication is Mr. Pavel Barkovsky, a national of Belarus born in 1978. He claims to be a victim of a violation by Belarus of his rights under articles 2(3) (a); 7; and 14(1) of the International Covenant on Civil and Political Rights. The Optional Protocol entered into force for Belarus on 30 December 1992. The author is unrepresented.

On 19 December 2010, the author participated in a demonstration against the presidential elections in Belarus, which he claimed were unfair. At 11.00 p.m. on the same day, he was detained by the police and brought to a detention centre together with approximately twenty other persons. Upon arrival to the detention centre, all detainees were lined up facing the wall, and continued standing in the manner until 7 a.m. the following day, for around 7 hours, the author estimates. The author submits that during this time he felt weak and his legs were in pain. He was then brought to a cell, where he could rest on a wooden bench with other detainees for three hours.

At 10 a.m. on 20 December 2010, the author was brought before a judge of the Sovetsky District Court of the city of Minsk. The court sentenced the author to 15 days of administrative detention for participating in an unauthorized protest. He was then taken back to the detention centre where he was held in a cell of two square meters together with two other detainees. He claims that the cell was so small that he could not lie down and had to stand on his feet for seven hours. He claims that he felt tired and deprived of sleep, and was not provided with either food or water for the whole duration of his arrest until the next day, 5 a.m. on 21 December 2010, altogether for more than 30 hours. He was then moved to a temporary detention facility on the Okrestina street due to the shortage of space in the first detention centre.

The following day, on 22 December 2010, he was moved back to the first detention centre where the author spent the remaining 13 days of his sentence. The first six days he was detained in a cell of about 20 m² together with eight to ten other detainees. He was then moved to a cell of approximately 10 m² together with five other persons. The author complains that the conditions of his detention were inhuman and degrading. He claims that the cells had no beds and no chairs, and the only wooden bench had to be used by all ten detainees. He was forced to sleep fully clothed on bare wooden boards. The author was not provided with a mattress, a blanket or a pillow, although the temperature inside varied between 10°C and 14°C. The temperature dropped to 10°C during the night, which resulted in him being constantly cold and having difficulties to sleep. The author also suffered from headaches and backaches. Throughout the detention, the author suffered from lack of food and sleep, as well as continuous headaches.

The cells were very small, therefore he could not practice any physical activity. The author could not read as the cells were not provided with sufficient light, desk or chairs. He was also deprived of everyday walks, and because of a poor ventilation, he was exposed to strong tobacco smell from smokers in his cell that had an adverse impact on his health. Furthermore, the toilet was not separated from the common area of the cell, and he had to use the toilet in full view of other detainees, which was, in the author’s opinion, degrading.

On 11 January 2011, the author filed a complaint to the Minsk City Prosecutor’s Office concerning conditions of his detention. On 31 January 2011, the prosecutor’s office responded that his claims regarding temperature, lighting, sanitary conditions, food and space in the detention cells “were not confirmed”. In that same letter, the prosecutor’s office also admitted that “the necessary measures were being taken” to provide detainees, who committed administrative offences, with cells that are equipped with furniture and beddings as well as with access to telephone and inside yards for daily walks.

On 22 February 2011, the author submitted a complaint to the General Prosecutor’s office against the decision of the Minsk City Prosecutor’s Office. The author complained that he was not informed that the officials from the Minsk City Prosecutor’s office indeed visited the places of his detention in order to verify his claims as he was not granted access to the case materials. He also claimed that the prosecutor’s office ignored his claims of inhuman treatment he suffered even before the court hearing, such as the lengthy time he spent standing and facing the wall, sleep deprivation, extensive stay in a small cell, and that he was not provided with sufficient food or water. On 25 February 2011, the General Prosecutor’s Office responded that his complaint was forwarded for further investigation back to the Minsk City Prosecutor’s Office.

On 15 March 2011, the Minsk City Prosecutor’s Office confirmed that the author had indeed not been provided with furniture and beddings nor given access to the yard and telephone. It stated that the “inconveniences” did not serve the aim of violating his or other detainees’ rights, but were the result of the “objective reasons” such as an increase in the prison population. On 6 March 2011, the author appealed the decision to the General Prosecutor’s Office claiming that his earlier complaint had been forwarded back to the Minsk City Prosecutor’s Office, to the same official, who decided on his case in the first place, violating his right to independent review of his complaint. He also complained that the second decision of the Minsk City Prosecutor’s Office of 15 March 2011 once again ignored his claims mentioned in his earlier appeal that amounted to inhuman and degrading treatment. However, no response followed from the General Prosecutor’s Office; instead, he received another letter from the Minsk City Prosecutor’s Office, which ignored his claims.

On 19 January 2011, the author also initiated civil proceedings demanding moral compensation from the Main Department of Internal Affairs to the Moskovsky District Court of Minsk. On 3 March 2011, the court refused to initiate proceedings for lack of jurisdiction. In its decision, the court stated that the claims and complaints regarding conditions of detention should not be adjudicated by civil courts, but rather, the author should have complained to the administration of the relevant detention facility. On 10 March 2011, the author appealed against this decision to the Minsk City Court, arguing that article 60, paragraph 1, of the Constitution of Belarus guarantees protection of one's rights and liberties by a competent, independent and impartial tribunal and that he was denied in such right. On 7 April 2011, the Minsk City Court upheld the decision of the Moskovsky District Court and rejected the author’s appeal. Therefore, the decision of the Moskovsky District Court became final and came into force. Subsequently, in June 2011, the author submitted a complaint to the Chairperson of the Minsk City Court and on 7 October 2011, to the Chairperson of the Supreme Court of Belarus under the supervisory review procedure. Both courts upheld the decisions of lower courts.

The author claims a violation of article 2(3)(a), of the Covenant in view of the failure by Belarus to investigate into his allegations under article 7 of the Covenant and to provide him with an effective remedy within the meaning of article 2(3)(a), of the Covenant.

He claims that the inhuman conditions of his detention, in particular the overcrowded and cold cells, the denial of everyday walks, the lack of isolation of the toilet facilities, deprivation of food and water, taken as a whole, amount to a violation of article 7 of the Covenant and of articles 9; 10; 11; 12; 19; 20(2); and 21(1), of the Standard Minimum Rules for the Treatment of Prisoners.

The author further alleges that the refusal to have his case duly considered by a competent, impartial and independent tribunal amounted to a denial of access to court, and to denial of his right to justice, in violation of article 14(1), of the Covenant.

By Notes Verbales of 11 June 2012 and 6 March 2014, the Committee requested the State party to submit to it information and observations on admissibility and the merits of the present communication. The Committee notes that this information has not been received. The Committee regrets the State party’s failure to provide any information with regard to admissibility or the substance of the author’s claims. It recalls that article 4(2) of the Optional Protocol obliges States parties to examine in good faith all allegations brought against them and to make available to the Committee all information at their disposal. In the absence of a reply from the State party, due weight must be given to the author’s allegations, to the extent that they have been properly substantiated.⁵

5. See, e.g., Samathanan v. Sri Lanka (CCPR/C/118/D/2412/2014), para. 4.2; and Diergaardt et al. v. Namibia (CCPR/C/69/D/760/1997), para. 10.2. ↩

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

The Committee has ascertained, as required under article 5(2)(a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

The Committee takes note of the author’s assertion that all available and effective domestic remedies have been exhausted. In the absence of any objection by the State party in this connection, the Committee considers that the requirements of article 5(2)(b) of the Optional Protocol have been met.

The Committee notes the author’s submission that the State party violated its obligations under article 2(3)(a) of the Covenant, since it failed to investigate the alleged violation of his rights under article 7 of the Covenant. The Committee therefore considers that the author’s claim of violation under article 2(3)(a) of the Covenant shall be considered in conjunction with article 7.

The Committee considers that the communication is admissible as far as it raises issues under article 7 read alone and in conjunction with article 2(3)(a), and article 14(1), of the Covenant. The Committee considers that the author’s claim about the conditions of his detention also appears to raise issues under article 10(1) of the Covenant. Accordingly, it declares this part of the communication admissible and proceeds to its examination on the merits.

The Human Rights Committee has considered the present communication in the light of all the information made available to it by the author, as required under article 5(1) of the Optional Protocol.

The Committee notes the author’s claim that upon arrival to the detention center, he was forced to stand facing the wall, for seven hours, and that he did not receive food and water during the first 30 hours following his arrest. The Committee also notes the author’s claims that he spent 13 days (para. 2.3) in an overcrowded but small cell without bedding, chairs, heating, and proper ventilation, under extremely poor sanitary conditions. For the full duration of his detention, he was obliged to sleep on a wooden board with 10 other people and wasn’t allowed to leave his cell for daily walks. The temperature inside varied between 10 and 14 °C, which resulted in him being cold and caused him difficulties to sleep. The author also claims that the toilet was not separated from the common area of the cell, and he had to use the toilet in full view of other detainees. The author claims that overall, the conditions of his detention, including food, water and sleep deprivation as outlined above, had caused him physical and mental suffering and amounted to cruel, inhuman and degrading treatment⁶. The Committee recalls that persons deprived of their liberty may not be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; and they must be treated humanely in accordance with the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).⁷ The Committee notes that the State party has not contested the information provided by the author on his conditions of detention, nor has it provided any additional information in this respect. In these circumstances, due weight must be given to the author’s allegations. The Committee therefore considers that the conditions of detention that the author was subjected to amounted to a violation of his rights under article 7 of the Covenant.

6. The Committee notes that these allegations are consistent with previous findings of the Committee against Torture regarding poor conditions in places of deprivation of liberty in Belarus including overcrowding, poor diet, lack of access to facilities for basic hygiene and inadequate medical care, and that the prosecutor’s office, in its response, partially accepted these shortcomings. See CAT/C/BLR/CO/4, para. 19. ↩
7. See Aminov v Turkmenistan (CCPR/C/117/D/2220/2012), para. 9.3. ↩

The Committee also considers, as it has repeatedly found in respect of similar substantiated claims,⁸ that the author's conditions of detention as described violated his right to be treated with humanity and with respect for the inherent dignity of the human person, and were therefore contrary to article 10(1), a provision of the Covenant dealing specifically with the situation of persons deprived of their liberty.. For these reasons, the Committee finds that the circumstances of the author’s detention, as described by the author, constitute a violation of article 10(1) of the Covenant.

8. See Kozulin v. Belarus (CCPR/C/112/D/1773/2008), para 9.5, Bobrov v. Belarus (CCPR/C/122/D/2181/2012), para. 8.2. ↩

The Committee notes the author’s allegations that when he initiated civil proceedings against the illegal inactions of the administration of the detention facility to the Moskovsky District Court of the Minsk city, claiming that the conditions of his detention violated his rights under article 7 of the Covenant, the court refused to initiate proceedings for lack of jurisdiction, indicating that national legislation provides for an out-of-court (administrative) procedure for the consideration of complaints regarding conditions of detention, namely through a complaint to the head of the detention facility, where the author had served his administrative sentence.

The Committee reiterates the importance it attaches to States parties establishing appropriate judicial and administrative mechanisms for addressing alleged violations of rights under domestic law. It refers to paragraph 15 of its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, in which it states that a failure by a State party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. In the present case, the Committee notes that the author filed several complaints to the prosecutor’s office, which failed to take any actions, and that the national courts refused to initiate proceedings for lack of jurisdiction, therefore, the Committee concludes that the information before it indicates that the out-of-court (administrative) procedure was not an effective remedy. In the absence of any information from the State party, the Committee concludes that the author’s rights under articles 7 and 10(1) in conjunction with article 2(3)(a) of the Covenant have been violated.

In light of that conclusion, the Committee decides not to examine separately the author’s remaining claims under article 14(1) of the Covenant.

The Human Rights 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 7 and 10, paragraph 1, read alone and in conjunction with article 2(3)(a) of the Covenant.

In accordance with 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. In the present case, the State party is under an obligation, inter alia, to provide adequate compensation to the author, including reimbursement of any legal costs incurred, as well as appropriate measures of satisfaction. The State party is also under an obligation to take steps to prevent similar violations in the future, including by amending the current system of complaint against conditions of detention to ensure that complainants have access to effective remedy.

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 or 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 present Views and to have them widely disseminated in the official languages of the State party. Individual opinion by Mr. Yuval Shany, Ms. Sarah Cleveland, Ms. Marcia V.J. Kran, Mr. Christof Heyns and Ms. Ilze Brands-Kehris (concurring)

We agree with the majority of the Committee that France, the respondent State, did not adequately explain a security rationale that might justify the blanket ban on Muslim religious full head coverage, especially in 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 individuals belonging to a religious minority, at the threat of criminal sanction, to dress in a manner conducive to ‘normal’ social interaction.

We are more receptive, however, to the implicit claim that the full veil is discriminatory (para. 8.15), as we do 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”⁹ and 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 it does not result in discrimination against women.

9. Report of the Working Group on the issue of discrimination against women in law and in practice, UN Doc. A/HRC/29/40 (2015), para. 19 (“Conservative religious extremist movements impose strict modesty codes in order to subjugate women and girls in the name of religion”). ↩

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 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 the full 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.

Given the harsh consequences on 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 Act No. 2010-1192 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 European Court of Human Rights judgment in SAS v France that reject justifying the ban on anti-discrimination grounds.¹⁰

10. SAS v France, para. 118-120. ↩

I concur in the majority opinion. Regarding the stated aim of promoting public safety and order, I 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 space (para 8.7), but also has not explained in what way 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 — are 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 the wear the full face veil, which is not proportionate to the stated aim (para 8.11), this blanket ban has not been shown to be either necessary or proportionate to its stated legitimate aim of promoting public safety.

With respect to protecting the fundamental rights and freedoms of others and the “living together” concept that the State party relates to this aim, there is a lack of clarity regarding which fundamental rights specifically are intended to be protected (para 8.10). It also remains unclear from the State party’s position 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.¹¹ This reinforces the doubts about the claim that the “living together” concept constitutes a legitimate aim under the fundamental rights and freedom of others in article 18(3) of the Covenant.

11. Cf. S.A.S. v France, ECtHR 43835/11, judgment 1 July 2014, para 127. ↩

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 for adoption of this legislation. In this regard, the argument that the full face veil is inherently oppressive and stems from patriarchal subjugation of women with the intent to prevent them from participation as equals in society is relevant. However, in view of the fact that another criminal provision in article 4 of the same law, 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, and 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.¹² 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.

12. UN Special Rapporteur on Freedom of Religion and Belief, UN Doc. A/HRC/68/290 (2013), interim report focused on freedom of religion or belief and equality between men and women, para. 74(d) (“Policies designed to empower individuals exposed to gender-related discrimination cannot claim credibility unless they pay careful attention to the self-understandings, interests and assessments voiced by the concerned persons themselves, including women from religious minorities. This principle should always be observed, in particular before setting legislative or jurisdictional limits to a right to freedom, for example the right to wear religious garments.) ↩

Finally, the 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 where there is a very low likelihood that any person would encounter a fully veiled woman in the 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.

Dans les deux affaires, objets des communications no 2747/2016 et 2807/2016, le Comité constate que l’État partie, en adoptant la loi n°2010/1192, a violé les droits des auteures au titre des articles 18 et 26 du Pacte. Je regrette de ne pouvoir partager cette conclusion et cela pour les raisons suivantes.

Je suis tout d'abord surpris par le fait que le Comité déclare que « l’État partie n’a pas montré en quoi le voile intégral représente en soi une menace pour la sécurité ou l’ordre publics qui justifierait cette interdiction absolue ». Je ne m'appesantirai pas sur la menace à la sécurité publique, tant elle me semble évidente, dans un contexte de lutte contre des terroristes dont certains ont exécuté des attentats ou des assassinats en France et ailleurs, en se travestissant avec des niqabs. Ces raisons de sécurité suffisent à elles seules à justifier la nécessité à la fois de l'interdiction et de la pénalisation. Je m'arrêterai, en revanche, plus longuement sur le sens de l'expression « protection de l'ordre », lue conjointement avec « la protection de la morale ou des libertés et droits fondamentaux d'autrui » dans l'article 18 § 3.

Dans cet article, le terme « ordre », vise évidemment celui de l’État auteur de la restriction. L'ordre, en France, par l'effet de la Constitution, est un ordre républicain, laïc et démocratique. L'égalité des hommes et des femmes fait partie des principes les plus fondamentaux de cet ordre, aussi vrai qu'il fait partie des principes les plus fondamentaux du Pacte. Or, en soi, le niqab est un symbole de stigmatisation et d'infériorisation des femmes, par conséquent contraire à l'ordre républicain et à l'égalité des genres dans l'Etat partie, mais également à l'article 3 et à l'article 26 du Pacte. Les défenseurs du niqab enferment la femme dans son statut biologique primaire de femelle, objet sexuel, chair sans esprit ni raison, responsable potentiel du désordre cosmique et du désordre moral, et qui doit donc se rendre invisible aux regard masculin et être pour cela quasiment interdite d'espace public. Un État démocratique ne peut permettre une telle stigmatisation, à l'égard de toutes les autres femmes. Or, le port du niqab porte atteinte aux «libertés et droits fondamentaux d'autrui », c'est-à-dire précisément aux droits des autres femmes et de la femme en tant que telle. Son interdiction n'est donc pas contraire au Pacte. Je suis d'accord avec le Comité pour admettre que les restrictions prévues par l'article 18 § 3 doivent être interprétées strictement. « Strictement » ne signifie cependant pas que ces restrictions sont dispensées de respecter les autres dispositions du Pacte, ainsi que l'esprit de l'article 18 lui-même, tel que nous l'avons expliqué au paragraphe précédent.

Le Comité admet dans les deux espèces que « le port du voile intégral relève d’une coutume d’une partie des fidèles musulmans et qu’il s’agit de l’accomplissement d’un rite et de la pratique d’une religion ». Cependant les constatations du Comité n'expliquent pas cette mystérieuse transfiguration d'une coutume en une obligation religieuse à caractère cultuel, au sens de l'article 18 du Pacte. En vérité, le port du niqab ou de la burqa est une coutume suivie dans certains pays dits « musulmans » qui, par l'effet de l'islamisme politique et des tendances rigoristes, a été artificiellement raccrochée à certains versets du Coran, notamment les versets 31 de la sourate de La Lumière et le verset

59 de la sourate des Coalisés. Pourtant, les savants les plus autorisés de l'islam ne reconnaissent pas la dissimulation du visage comme une obligation religieuse. En admettant même que le port du niqab soit interprété, comme le veut le Comité comme l'expression de la liberté de religion, Il faut rappeler que toutes les interprétations ne se valent pas au regard d’une société démocratique ayant pour fondement de son système juridique les droits de l’homme, les principes de la DUDH et du Pacte, et ayant érigé le principe de laïcité en principe constitutionnel, en particulier dans le contexte historique et juridique particulier de la France. Certaines interprétations ne peuvent avoir droit de cité.

Il en est ainsi de la polygamie, de l'excision, de l'inégalité successorale, de la répudiation, du droit du mari de corriger sa femme, du lévirat, du sororat, qui constituent, pour tous ceux qui les pratiquent, autant d'obligations religieuses ou de rites, au même degré que le port du voile intégral pour ses adeptes. Pourtant, le Comité a toujours estimé que ce genre de pratiques était contraire aux dispositions du Pacte et a demandé constamment aux Etats de les abolir. N'est-il pas contradictoire de juger, dans un cas, que l'interdiction de l'une de ces pratiques attentatoires à l'égalité citoyenne et à la dignité de la femme est contraire au Pacte, et de juger, dans un autre cas, que ces pratiques sont protégées par l'article 18?

Un problème plus grave doit être soulevé. Il s'agit de la question du « vivre ensemble », avancée par la France et qui a inspiré l'adoption de la loi n°2010/1192. Je désapprouve totalement le Comité qui « constate que la notion du « vivre ensemble » est très vague et abstraite » et que « l’État partie n’a cité aucun droit ou liberté fondamentale d’autrui précis qui serait touché ». L'exposé des motifs de la loi est pourtant très substantiel sur cette question et n'a pas manqué de souligner que la dissimulation du visage constitue une rupture du contrat social, du minimum de civilité, de fraternité et du vivre ensemble. Les constatations du Comité oublient malheureusement que le droit fondamental atteint dans ce cas, n'est ni celui de quelques individus, ni de quelque groupe que ce soit, mais le droit de la société tout entière à reconnaître les siens, à travers les signatures de leurs visages qui est en même temps le signe de leur sociabilité, voire de leur humanité. Contrairement à ce qu'affirment les constatations, la notion de vivre ensemble n'est ni vague, ni abstraite. Elle est précise et concrète. Elle est fondée sur une idée très simple que la société démocratique ne peut fonctionner qu'à visage découvert. Plus généralement, comme je l'ai déjà indiqué, la communication humaine primordiale, avant tout autre langage, passe par le visage. Dissimuler totalement et en permanence son visage dans l'espace public, particulièrement dans un contexte démocratique, c'est renier sa propre sociabilité et, rompre le lien avec ses semblables. Interdire et pénaliser par une simple amende le port du foulard intégral par la loi n'est, de ce fait, ni excessif, ni disproportionné. Sur ce plan, il n'y a nulle comparaison à établir entre le hijab et le niqab. Ce sont deux questions différentes par nature.

C'est donc par un renversement total de l'ordre des droits que le Comité estime que « l’interdiction pénale introduite par l’article premier de la loi no 2010-1192 affecte de façon disproportionnée l’auteure en tant que femme musulmane qui choisit de porter le voile intégral, et introduit entre elle et les autres personnes qui couvrent parfois leur visage dans l’espace public de façon légale une distinction qui n’est ni nécessaire ni proportionnée à un intérêt légitime et qui est donc déraisonnable ». Le Comité conclut de ce fait que cet article constitue une forme de discrimination croisée basée sur le sexe et la religion, en violation de l’article 26 du Pacte. Que l'interdiction soit nécessaire ne fait pourtant pas de doute, ne serait-ce qu'au regard du seul risque sécuritaire (ci-dessus §2), qu'elle soit proportionnée est attesté par la faiblesse de la sanction: une amende de 150 euros et un stage de citoyenneté, bien mérités d'ailleurs étant donnée, en l'espèce, la gravité de l'atteinte à l'égalité citoyenne et à la dignité des femmes.

Abordons maintenant la question de ces personnes qui, contrairement aux porteuses de voile intégral, sont autorisées par la loi n°2010/1192 à couvrir leurs visages, ce qui constituerait, d'après les constatations, une discrimination contraire à l'article 26. Il s'agit des personnes visées par l'article 2.II de la loi qui prévoit des exceptions à l'interdiction. Ces exceptions peuvent-elles être mises sur un même pied d'égalité et comparées avec la pratique du foulard intégral ? Cet article 2 de la loi n°2010/1192 est-il discriminatoire et contraire à l'article 26 ? Je ne le pense pas. Ces exceptions, en général circonstancielles et temporaires, ont pour la plupart un caractère, ludique, récréatif, festif, folklorique, sportif ou sont nécessaires pour des raisons de service ou de sécurité, notamment la sécurité routière. Elles existent dans tous les pays et ne constituent nullement des symboles ou des messages à connotation discriminatoire susceptibles de déclencher l'application de l'article 26 du Pacte, au même titre que le voile intégral.

Ma conclusion est que l'interdiction et la pénalisation par des amendes du port du voile intégral n'est, en particulier dans le contexte français, ni contraire à l'article 18, ni à l'article 26 du Pacte.

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

Both cases concern the use of 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.

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 in favor of a decision of violation and of non-violation. Both cases have, apart from underlying legal issues, a significant political impact, not only for France, but for many other countries in Europe, Africa or Asia, where the problem of the use of niqab may also arise. The question was thus to find a solution with reduced damages, although taking into account all relevant factors and preventing the risk for any future unwarranted and abusive interpretation of the Committee’s decision.

I tend to consider 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 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 practicing Muslims” (para 3.2). We are therefore facing a religious custom, not an undisputed religious obligation.

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

Both authors are French nationals 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, 3.14), “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 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 dealt with caution, to allow the Committee to reach a fair and reasonable decision, which unfortunately, in the present case, did not occur.

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 to such a society, as is the case for both authors. Yet the authors refuse to accept this.

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 by National Assembly and Senate unanimously bar one vote 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 people from civil society (para 5.1).¹³ On 11 May 2010 — prior to the adoption of the law — the National Assembly adopted a resolution in which it said “radical practices detrimental to human dignity and equality between men and women, including the wearing of a full-face veil, are 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).¹⁴

13. Para 7.1 in the Yaker case ↩
14. Para 7.2 in the Yaker case ↩

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).¹⁵ 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),¹⁶ does not target any specific article of clothing and makes no distinction between men and women (para 5.11).¹⁷ 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 (paras 5.9).¹⁸ Exemptions from the Act include clothing worn for “health” or “professional” reasons, “part of sporting, artistic, or traditional festivities or events,” including “religious processions”, or that otherwise is legally authorized (para 7.2)¹⁹, 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 (www.visage-decouvert.gouv.fr). 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).²⁰

15. Para 7.3 in the Yaker case ↩
16. Para 7.5 in the Yaker case ↩
17. Para 7.11 in the Yaker case ↩
18. Para 7.9 in the Yaker case ↩
19. Para 8.2 in the Yaker case ↩
20. Para 7.6 in the Yaker case ↩

The Act pursues a legitimate aim, the protection of the rights and freedoms of others and protection of public order, as clearly defined in the Act’s statement of purpose, which reaffirms “the values of the Republic and the requirements of living together” (para 5.7).²¹ ECHR decision in case 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).

21. Para 7.7 in the Yaker case ↩

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 people must show their faces, a vital concern in the context of current international terrorist threats (para 5.8).²² The Committee, however, doesn’t seem to have sufficiently weighed this last requirement, failing to address the underlying problem properly (para 7.7).²³

22. Para 7.8 of the Yaker case ↩
23. Para 8.7 of the Yaker case ↩

It is true that the ECHR in the S.A.S. judgement 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 such judgement, France has experienced several terrorist attacks: January 2015 Isle-de-France (20 killed, 22 injured), November 2015 Paris (137 killed, 368 injured) and July 2016 Nice (87 killed, 434 injured), by Al-Qaeda and Islamic State. In 2017, a total of 205 foiled, failed and completed terrorist attacks were reported by nine EU Member States (France experienced 54 attacks). In 2017, a total of 975 individuals were arrested in the EU for terrorism related offences. Most arrests (705 out of 791) were related to jihadist terrorism (123 female, of which 64% held the citizenship of an EU Member State and were born in the EU). France alone accounted for 411 arrests and 114 verdicts. As for the number of suspects arrested for religiously inspired/jihadist terrorism (705), France accounted for 373.²⁴ In this context, it is of extreme importance to quickly identify and locate possible suspects, since they travel through different countries to arrive to their destination and may avail themselves of the niqab to go unnoticed. Therefore, in the current circumstances, the imposed ban seems proportionate to the aim pursued by the Act, although it should be subject to periodic risk assessments (article 7 of the Act).

24. European Union Terrorism Situation and Trend Report (TESAT) 2018. ↩

Unlike held by the majority of the Committee (para 7.16), 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 2 fine (of 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 behavior? 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 the person he/she is going to judge to have his/her face covered during the 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.

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

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