(Dec. 16, 2008) In two cases decided on December 4, 2008, Dogru v. France and Affaire Kervanci c. France, the European Court of Human Rights unanimously found that France did not violate the applicants' rights to religious freedom and education guaranteed by article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms and article 2 of Protocol No. 1, respectively.
On several occasions, the applicants, aged 11 and 12, went to physical education and sports classes wearing their headscarves. They refused to remove them despite repeated requests from their respective teachers. They were expelled from school on four grounds: (1) breaching the duty of assiduity by failing to participate actively in physical education and sports classes; (2) not complying with school internal rules, which require that pupils must attend sports classes in their sports clothes for health and safety reasons; (3) applicability of a memorandum on safety during school activities that allowed teachers to put a stop to any behavior on the part of pupils that may present a danger; and (4) applicability of a decision of the Conseil d'Etat (France's highest administrative court) stating that “wearing a headscarf as a sign of religious affiliation was incompatible with the proper conduct of physical education and sport classes.” Their parents appealed the school decisions before the French administrative courts without success. Both applicants took correspondence courses to continue their schooling.
The Court noted that article 9 “does not, however, protect every act motivated or inspired by a religion or belief and does not always guarantee the right to behave in a manner governed by a religious belief.” It further noted that “in a democratic society, in which several religions co-exist within one and the same population, it may be necessary to place restrictions on this freedom to reconcile the interests of the various groups and ensure that everyone's beliefs are respected.” The Court also reiterated, “the State may limit the freedom to manifest a religion…if the exercise of that freedom clashes with the aim of protecting the rights of others, public order and public safety.” The Court, therefore, considered that:
…the penalty of expulsion does not appear disproportionate, and notes that the applicant was fully able to continue her schooling by correspondence classes. It can be seen that the applicant's religious convictions were fully taken into account in relation to the requirements of protecting the rights and freedoms of others and public order. It is also clear that the decision complained of was based on those requirements and not on any objections to the applicant's religious beliefs.
(European Court of Human Rights, Case of Dogru v. France, http://cmiskp.echr.coe.int
398649&key=74834&sessionId=17152641&skin=hudoc-en&attachment=true; Affaire Kervanci c. France (only in French), http://cmiskp.echr.coe.int/tkp197/search.asp [using search mechanism] (both last visited Dec. 9, 2008).)