What now seems like aeons ago, in Mann Singh v France  ECHR 1523 the ECtHR unanimously declared inadmissible a claim by Mr Shingara Mann Singh, a French national, that the domestic requirement that a photograph intended for use on a driving licence should show the subject “bareheaded and facing forward” discriminated against practising Sikhs. He had argued that refusing to allow him to wear his turban in the photograph to be used on his licence violated his rights under Articles 8 (private and family life), 9 (thought, conscience and religion) and 14 (discrimination) ECHR.
Having had no success in Strasbourg, Mr Mann Singh decided to try another route – Geneva – on a very similar issue. In Shingara Mann Singh v France  UN Human Rights Committee CCPR/C/108/D/1928/2010, published on 26 September, he complained that when he had attempted to renew his passport for the fourth time in 2005 with a photograph showing him wearing his turban, the local prefecture rejected his application because the photograph did not conform with the provisions of Décret no 2001-185 of 26 February 2001 on issuing and renewing passports, Article 5 of which requires identity photographs to be “face-on, bareheaded, in 35 x 45 mm format, recent, and an accurate likeness” [de face, tête nue, de format 35 x 45 mm, récentes et parfaitement ressemblantes].
On this occasion he did not take his case to the Conseil d’Etat because in December 2006 it had ruled against him on the driver’s licence issue. He therefore considered it futile to bring the passport case to the Conseil and the ECtHR because the arguments were the same as before; and he contended – successfully – that domestic remedies had in effect been exhausted.
He maintained that the turban was an integral part of a Sikh’s faith and identity and that to oblige a Sikh to remove his turban was as humiliating as obliging someone to remove his trousers in public. Moreover, a number of countries recognised the dual religious and personal significance of the turban and had adopted specific measures to protect the dignity and religious freedom of devout Sikhs. In short, the requirement in Decree No. 2001-185 violated his rights under Articles 2 (discrimination and effective remedy), 12 (liberty of movement), 18 (freedom of thought, conscience and religion) and 26 (equal protection before the law) of the International Covenant on Civil and Political Rights.
The Committee found in favour of Mr Mann Singh:
“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, who wears his turban at all times, than if he were to appear bareheaded. Nor has the State party explained in specific terms how bareheaded identity photographs of people who always appear in public with their heads covered help to facilitate their identification in everyday life and to avert the risk of fraud or falsification of passports” [para 9.4].
The French Government had therefore failed to demonstrate that the limitation in Decree No. 2001-185 was necessary within the meaning of Article 18, paragraph 3, of the Covenant. Moreover:
“… 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 thus be compelled to remove his turban during identity checks” [para 9.5].
The Committee concluded that the disputed Decree was a disproportionate limitation on Mr Mann Singh’s freedom of religion, in violation of article 18 of the Covenant. It was not necessary to examine the complaint of a separate violation of the right to non-discrimination under Articles 2 and 26.
Two tribunals, similar facts, similar law, the same applicant – and opposite results. But should one be totally surprised? It happens every time a lower court is reversed on appeal: see, for example, the recent judgment in Methodist Conference v Preston  UKSC 29 in which four Justices of the Supreme Court took precisely the opposite view from that of three judges in the Court of Appeal (and Lady Hale JSC dissenting).
Possibly what weighed most heavily with the UNHRC was that the effect of Decree No. 2001-185 was that observant Sikh males would be unable to travel outside France because they would be unable to obtain a passport. Perhaps the ECtHR regarded inability to obtain a driving licence as of less importance – or simply conceded too great a margin of appreciation to the French Government.
There is an extremely interesting analytic post on this case by Saïla Ouald Chaib on Strasbourg Observers – to whom we are grateful for the lead.
Next stop: burqas?
Quite possibly: but first of all we’ll have to see what the ECtHR Grand Chamber decides in SAS v France. The hearing is scheduled for 27 November so presumably we’ll see the judgment sometime in February or March 2014.
Pingback: Religious discrimination and the Ministry of Justice: a quick look at religious dress and discrimination | Law & Religion UK
Pingback: Face-veils and citizenship oaths: Ishaq v Canada | Law & Religion UK