E/CN.4/2006/5
page 17
must be directly related and proportionate to the specific need on which they are predicated.
Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory
manner (para. 8)”.
55.
On the basis of the above-mentioned factual aspects, the legal framework and
international case law, the Special Rapporteur has endeavoured to develop a set of general
criteria in order to evaluate - from a human rights law perspective - restrictions and prohibitions
on wearing religious symbols. The following “aggravating indicators” show legislative and
administrative actions which typically are incompatible with international human rights law
whereas the subsequent “neutral indicators” by themselves do not tend to contravene these
standards:
(a)
Aggravating indicators:
− The limitation amounts to the nullification of the individual’s freedom to manifest his
or her religion or belief;
− The restriction is intended to or leads to either overt discrimination or camouflaged
differentiation depending on the religion or belief involved;
− Limitations on the freedom to manifest a religion or belief for the purpose of
protecting morals are based on principles deriving exclusively from a single
tradition;19
− Exceptions to the prohibition of wearing religious symbols are, either expressly or
tacitly, tailored to the predominant or incumbent religion or belief;
− In practice, State agencies apply an imposed restriction in a discriminatory manner or
with a discriminatory purpose, e.g. by arbitrarily targeting certain communities or
groups, such as women;
− No due account is taken of specific features of religions or beliefs, e.g. a religion
which prescribes wearing religious dress seems to be more deeply affected by a
wholesale ban than a different religion or belief which places no particular emphasis
on this issue;
− Use of coercive methods and sanctions applied to individuals who do not wish to
wear a religious dress or a specific symbol seen as sanctioned by religion. This
would include legal provisions or State policies allowing individuals, including
parents, to use undue pressure, threats or violence to abide by such rules;
(b)
Neutral indicators:
− The language of the restriction or prohibition clause is worded in a neutral and
all-embracing way;