Raihon Hudoyberganova v. Uzbekistan

October - 5 November 2004

The author of the communication is Raihon Hudoyberganova, an Uzbek national born in 1978. She claims to be a victim of violations by Uzbekistan of her rights under articles 18 and 19 of the International Covenant on Civil and Political Rights. She is not represented by counsel.

On 24 May 2000, 26 February 2001, 11 October 2001, and 3 September 2004, the State party was requested to submit to the Committee information and comments on the admissibility and merits of the communication. The State party presented its comments on 21 October 2004. It recalls that on 21 May 1998, the author applied to the Mirabad District Court of Tashkent with a request to acknowledge the illegality of her dismissal from the Tashkent State Institute of Eastern Languages and to restore her as a student. On 30 June 1998, the Mirabadsky District Court dismissed her appeal. The State party explains that according to the Court’s civil case, it transpired that the author was admitted in the Faculty of Languages in the Institute in 1995, and in 1996 she continued her studies in the Faculty of History (Islamic Department). According to paragraph 2 (d) of the Internal Regulations (regulating the rights and obligations of the Institute’s students), in the Institute, students are forbidden to wear clothes “attracting undue attention”, and forbidden to circulate with the face covered (with a hijab). This regulation was discussed at a general meeting of all students on 15 January 1998. The author was presented the text and she made a note that she disagrees with the requirements of paragraph 2 (d). On 26 January 1998, the Dean of the Faculty of History warned her that she violated the provisions of paragraph 2 (d), of the Institute’s regulations. The author refused to sign the warning and a record in this respect was made on 27 January 1998. On 10 February 1998, by order of the Dean of the Faculty of History, the author was reprimanded for infringement of the Internal Regulations. By order of the Rector of the Institute of 16 March 1998, Ms. Hudayberganova was excluded from the Institute. The order was grounded on the “rough immoral attitude toward a teacher and infringement of the internal regulations of the Institute, after numerous warnings”. According to the State party, no cassation appeal was introduced against this decision. Her claim under the supervisory procedure (nadzornaya zhaloba) gave no result.

Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not the communication is admissible under the Optional Protocol to the Covenant.

The Committee notes that the same matter is not being examined under any other international procedure and that domestic remedies have been exhausted. [No challenge from the State party to this conclusion has been received.] The requirements of article 5, paragraph 2 (a) and (b), of the Optional Protocol have thus been met.

The Committee has noted that the author has invoked article 19, of the Covenant, without however providing specific allegations on this particular issue, but limited herself to the mere enumeration of the above article. Therefore, the Committee concludes that the author has not substantiated this claim, for purposes of admissibility, and that this part of the communication is inadmissible under article 2 of the Optional Protocol.

As to the author’s remaining claims under article 18 of the Covenant, the Committee considers that it has been sufficiently substantiated for purposes of admissibility, and decides to proceed to its examination on the merits.

The Committee has noted the author’s claim that her right to freedom of thought, conscience and religion was violated as she was excluded from University because she refused to remove the headscarf that she wore in accordance with her beliefs. The Committee considers that the freedom to manifest one’s religion encompasses the right to wear clothes or attire in public which is in conformity with the individual’s faith or religion. Furthermore, it considers that to prevent a person from wearing religious clothing in public or private may constitute a violation of article 18, paragraph 2, which prohibits any coercion that would impair the individual’s freedom to have or adopt a religion. As reflected in the Committee’s General Comment No. 22 (para.5), policies or practices that have the same intention or effect as direct coercion, such as those restricting access to education, are inconsistent with article 18, paragraph 2. It recalls, however, that the freedom to manifest one’s religion or beliefs is not absolute and may be subject to limitations, which are prescribed by law and are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others (article 18, paragraph 3, of the Covenant). In the present case, the author’s exclusion took place on 15 March 1998, and was based on the provisions of the Institute’s new regulations. The Committee notes that the State party has not invoked any specific ground for which the restriction imposed on the author would in its view be necessary in the meaning of article 18, paragraph 3. Instead, the State party has sought to justify the expulsion of the author from University because of her refusal to comply with the ban. Neither the author nor the State party have specified what precise kind of attire the author wore and which was referred to as “hijab” by both parties. In the particular circumstances of the present case, and without either prejudging the right of a State party to limit expressions of religion and belief in the context of article 18 of the Covenant and duly taking into account the specifics of the context, or prejudging the right of academic institutions to adopt specific regulations relating to their own functioning, the Committee is led to conclude, in the absence of any justification provided by the State party, that there has been a violation of article 18, paragraph 2.

The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the Covenant, is of the view that the facts before it disclose a violation of article 18, paragraph 2, of the Covenant.

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide Ms. Hudoyberganova with an effective remedy. The State party is under an obligation to take measures to prevent similar violations in the future. 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 or not 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 in case a violation has been established, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee’s Views. [Adopted in English, French and Spanish, the English text being the original version. Subsequently to be issued in Arabic, Chinese and Russian as part of the Committee’s annual report to the General Assembly.]

Her negative attitude towards the teaching staff;

Her infringement of the regulations of the Institute. Regarding her negative attitude towards the teachers, the decision of Mirabad district court revealed that the author had accused one of the teachers of bribery, claiming that he was offering pass marks in examinations in return for money. According to the State party (para. 4.3), she was excluded because of her “rough immoral attitude toward a teacher”. The author has not supplied any information to justify her serious accusation against the teacher which would nullify the initial ground given for her expulsion. Nor has she explained any link between this ground for exclusion and the alleged violation of article 18 of the Covenant. Regarding the infringement of the regulations of the Institute, which did not permit the wearing of religious clothing on Institute premises, the author states that she disagreed with the provisions because they “prohibited students from covering their faces” (para. 2.3). The State party points out that the internal regulations forbid students to wear clothes “attracting undue attention”, and to circulate with the face covered (para. 4.2). Although the author and the State party do not specify which type of clothing the author was wearing, she states that she dressed “in accordance with the tenets of her religion”. However, the author herself states that she complained to the Chairman of the Committee of Religious Affairs (Cabinet of Ministers), who “informed [her] that Islam does not prescribe a specific cult dress” (para. 2.8). The author has not rebutted this assertion, which she herself passed on. Regarding the regulations of the university institute, it is necessary to bear in mind that academic institutions have the right to adopt specific rules to govern their own premises. It should also be added that these regulations applied to all students without exception, since the institution involved was a State institute of education, not a place of worship, and one in which the freedom to exercise one’s own religion is subject to the need to protect the fundamental rights and freedoms of others, that is, religious freedom for all, safeguarded by the guarantee of equality before the law, whatever the religious convictions or beliefs of each individual student. It is not appropriate to request the State party to provide specific grounds for the restriction complained of by the author, since the regulations applied impose general rules on all students, and there is no restriction imposed on her alone or on the adherents of one religion in particular. Furthermore, the exclusion of the author, according to her own statements, arose from more complex causes, and not only the religious clothing she wore or her demand to cover her face within the Institute. For the reasons set out and in the light of the information supplied, I conclude that the author has not substantiated any of her allegations that she was victim of a violation of article 18 of the Covenant. In accordance with article 5, paragraph 4, of the Optional Protocol, I consider that the facts in the present case do not reveal any violation of articles 18 and 19 of the Covenant.