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  • 22 July 2014: injunction to serve halal meals in prison overturned

By its ruling of 22 July 2014, the Administrative Court of Appeal of Lyon overturned the judgement of the Administrative Court of Grenoble of 7 November 2013 that ordered Saint-Quentin-Fallavier prison (in the French département of Isère) to offer halal meals to Muslim prisoners (see the ’current debate’ section for March 2014 below).
The court took the view that the various menus on offer ensure that prisoners are not obliged to eat food prohibited by the rules of the religion, that prisoners can furthermore request the supply of appropriate menus for religious holidays and have the option of buying halal meat through the ’canteen’. Therefore, a fair balance is maintained between the necessities of public service and prisoners’ religious rights.

For further information see the press release issued by the Administrative Court of Appeal of Lyon.

  • 1 July 2014: European Court of Human Rights rules on SAS v France

On 1 July 2014, the Grand Chamber of the European Court of Human Rights ruled on the SAS v France case. The applicant held that the law of 11 October 2010 prohibiting any person from concealing their face in public infringed upon her right to a private life (Article 8 of the European Convention) and essentially, her freedom of religion (Article 9). Finally, she argued that this law was discriminatory as it is aimed at Muslim women. The Court ruled that Article 9 concerning freedom of religion had not been infringed, thus giving discharge to the law, although it expressed numerous and serious reservations with respect to this law.

Based on the Court’s standard method of reasoning, it successively examined the interference in freedom of religion invoked in this particular case, the existence of legitimate goal(s) pursued by the restriction imposed on this freedom and, finally, the relationship of proportionality between the goal pursued and the prohibition or restriction.

Firstly, the existence of interference was not disputed in this specific case. Secondly, the Court conceded that the French legislator was indeed pursuing the legitimate goal of “responding to issues of ’public order’ or ’public safety’”, although one may “question whether the legislator gave significant weight to such concerns”. As regards the second legitimate goal, the French government argued that it sought to “respect minimum requirements for the values of a democratic and open society”. These requirements related to three values: “respect for gender equality, respect for individuals’ dignity and respect for the minimum requirements of life in society”. Having noted that only goals expressly set out in the Convention can be taken into consideration, the Strasbourg judges decided to examine this second goal from the perspective of protecting others’ rights and freedoms.

With regard to the principle of gender equality, the Court considered that this could not be invoked “in order to ban a practice that is defended by women such as the appellant within the scope of exercising rights” recognised by the Convention. It also did not accept the grounds of respecting individual dignity, while in contrast linking the legislator’s will to ensure that people continue to live together harmoniously with the legitimate aim of protecting others’ rights and freedoms. However, the “flexibility of the notion of ‘living together’ and the risk of excesses arising from this obliged the Court to perform” an in-depth examination of proportionality.
Within the scope of this examination of proportionality, the Court checked whether interference in freedom of religion is necessary in a democratic society or for protecting others’ rights and freedoms.

In this specific case, the general ban on people concealing their faces in public, “considering its impact on the rights of women who wish to wear the full-face veil for religious reasons” was deemed disproportionate to the aim of preventing detriment to the safety of individuals and property. The Court also took the view that the “contested ban may be deemed justified in principle solely insofar as it aims to safeguard conditions for ’living together”. However, the contested ban only just meets the requirements of proportionality with respect to this legitimate goal. Indeed, the Court highlighted the disproportion between the small number of women concerned and the enforcement of a law instituting a general ban, as well as the “strong negative impact on the circumstances of women who, like the applicant, have chosen to wear a full-face veil for reasons related to their beliefs”. It furthermore stated that it was “very concerned” by the Islamophobic comments that accompanied the legislative process and “noted that comments constituting a general and vehement attack against a group identified by a religion or ethnic origins are incompatible with the values of tolerance, social peace and non-discrimination that underpin the Convention”.

In contrast, the Strasbourg judges took the view that the ban was aimed at the fact that the veil conceals people’s faces rather than at its religious meaning, which distinguishes this case from the case of Ahmet Arslan and others versus Turkey, which related to a ban on religious dress in public. The mild nature of the penalties incurred was also highlighted. Finally and most importantly, the Court deferred to France’s large margin of discretion in this specific case, since: “the issue of whether or not to allow people to wear a full-face veil in public constitutes a choice for society”; “public policy issues” were involved; and the law of 11 October 2010 was the result of “arbitration performed in accordance with democratic procedures in the society in question”. The Court therefore ruled by fifteen votes to two that the applicant’s freedom of religion had not been infringed and the opposing opinion of the two judges was appended to the ruling.

Anne Fornerod
  • 25 June 2014: The Court of Cassation upholds the dismissal of an employee of the Baby Loup nursery

By its ruling of 25 June 2014, the French Court of Cassation sitting in plenary session brought the ’Baby Loup’ case to a close by rejecting the nursery employee’s appeal against the Court of Appeal of Paris ruling of 27 November 2013 (see Current debates 2013). The Court of Cassation confirmed that her dismissal by her employer following her refusal to remove her veil was justified, hence approving the court of appeal ruling that the restriction on freedom of religious expression laid down in the nursery’s internal rules was not general in nature, and was sufficiently specific, justified by the nature of tasks to be carried out and proportionate to the goal pursued. The Court specified that the principle of secularism is nevertheless not applicable to employees of private companies that do not manage a public service. It furthermore noted that the Baby Loup Association cannot be classified as an ’entreprise de conviction’ [special French status for companies espousing specific religious, political or philosophical beliefs] and therefore its purpose is not to promote or defend religious, political or philosophical beliefs.

For further information:
Cass. plen. sess., 25 June 2014, n° 13-28.369, L. v Assoc. Baby-Loup.

  • 24 June 2014: the ECHR suspends the Conseil d’Etat ruling whereby the medical decision to end Mr Vincent Lambert’s treatment is considered legal

Since a road accident in 2008 left Mr Vincent Lambert paralysed, he has been fed and hydrated artificially and is entirely dependent.
Following the consultation procedure provided for by the Leonetti Act of 22 April 2005 regarding patient rights and the end of life, the physician responsible for Mr Vincent Lambert took a decision on 11 January 2014 to stop feeding and hydrating the patient. Members of the family then brought the matter before the administrative court in Châlons-en-Champagne which, in its judgement of 16 January 2014, suspended the enforcement of the physician’s decision.
On 31 January 2014, Vincent Lambert’s wife and one of his nephews filed an appeal against this decision to the Council of State, which requested a medical assessment by a panel of three physicians. On 24 June 2014, the Conseil d’État disputes assembly ruled that the decision taken by the physician responsible for Mr Vincent Lambert to stop artificially feeding and hydrating him was legal, notably in view of the medical assessment that found that Mr Lambert’s state of consciousness had deteriorated and in light of the fact that Mr Lambert had expressed a desire prior to the accident not to be artificially kept alive if he was in a state of considerable dependence.
On 23 June 2014, the initial applicants referred the matter to the European Court of Human Rights for an interim measure. On 24 June 2014, the chamber to which the case was assigned decided to suspend enforcement of the ruling issued by the Conseil d’État for the duration of proceedings before the ECHR, which is now responsible for examining the admissibility and merits of the application.

Sources: press release by the Conseil d’Etat, 24 June 2014 and press release by the European Court of Human Rights, 25 June 2014.
Read also the article by Lucie Guichon « Fin de vie, soins palliatifs et euthanasie : les réactions des organisations religieuses à l’affaire Vincent Lambert » (pdf).

  • 4 June 2014: the French Council of the Muslim Faith issues a reminder of fundamental principles

On 4 June 2014, the French Council of the Muslim Faith (CFCM) decided to publish a “Civic agreement for French Muslims promoting integration”. This publication has come at a turbulent time with the topic of religious radicalism back on the agenda. In it, the CFCM lists the fundamental principles of Islam in 19 points and emphasises their compatibility with secularism and French society.

For further information: Le Monde and le Figaro.

  • March 2014: a prison obliged to provide halal meals to Muslim prisoners

On 20 March 2014, the Administrative Court of Appeal of Lyon refused to suspend the enforcement of a ruling issued by the Administrative Court of Grenoble, which, on 7 November 2013, obliged the prison administration of Saint-Quentin-Fallavier (in the French département of Isère) to regularly provide halal meals to Muslim prisoners on the grounds of freedom of religious practice. This decision was to be enforced within three months, which expired on 7 February.
The Ministry of Justice then appealed and requested that enforcement of the ruling be suspended on the grounds of “disruption to the prison service”, the complexity of certifying halal products and the fact that religious freedom was already upheld since vegetarian or pork-free menus were offered. The judgement of 20 March held that there was no “prohibitive additional expense for the prison” nor “any particular technical difficulty”. Halal meals are already provided for prisoners during major religious festivals. They can also purchase halal food at the canteen.

The chief inspector of custodial facilities took the view that providing faith-based meals (halal or kosher) in prisons does not infringe the principle of secularism (see his 2013 annual report, Section 8: ’Feedback on the issue of secularism in custodial facilities’). He states that it is difficult to refuse this freedom insofar as “the law of 1905 authorises chaplaincy services and funds allocated to expenditure for solely religious purposes”. He believes that in view of the principle of secularism, there is no difference between not serving pork and serving meals that are compliant with religious rituals.
In her comment* regarding the judgement delivered by the Administrative Court of Grenoble, Florence Nicoud takes the opposite view. She claims that by enforcing the compulsory provision of halal meals, the judgement reinterprets the principle of secularism as defined by the law of 1905 and challenges the neutrality of public service by responding to demands that appear to be community-based. She believes that this judgement creates a difficult situation, since as long as the public authorities fail to take a stance on this issue, an increasing number of disparate situations will emerge. This may spread to other public services such as hospitals, the armed forces or school dinners.
A ruling on the merits of the case is expected by the end of the year.

* Florence Nicoud: "Laïcité et restauration collective : du nouveau dans les prisons" [Secularism and catering: new developments in prisons], Grenoble Administrative Court, 7 Nov 2013, no. 13-02502, JCPA, no 15, 14 April 2014.

For further information: Revue générale du droit, Le Monde, le Figaro.

D 11 September 2014   

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