CCPR/C/123/D/2807/2016
contains additional factual evidence, is new and thus inadmissible”. This decision cannot be
appealed. The author maintains that she has exhausted all available domestic remedies.
2.7
The author points out that she was not assisted by counsel at the community court in
Nantes; that the procedure is an expedited one, with a single judge who is generally not even
a judge by profession; and that the procedure is not subject to appeal, leaving her no chance
to set out arguments related to her religious freedom and the discriminatory nature of the Act.
2.8
The author adds that the Court of Cassation, by holding that “the argument regarding
a violation of the European Convention on Human Rights, since it was not brought before
the trial judge and contains additional factual evidence, is new and thus inadmissible”,
incorrectly applied article 619 of the Code of Civil Procedure, which provides that new
grounds will not be admissible before the Court of Cassation. Nevertheless, the following
may be raised for the first time, unless stipulated otherwise: (a) purely legal grounds; and (b)
grounds based on the impugned decision.
2.9
According to the author, as the ground invoked, that is, the incompatibility of a law,
constitutes “purely legal grounds”, her appeal to the Court of Cassation against the banning
of the full-face veil was perfectly admissible, notwithstanding the fact that it was a new
argument. The author cites the example of a posteriori review of constitutionality; since 2010,
it has been possible by law to raise this issue for the first time in an appeal to the Court of
Cassation. She adds that an assessment in abstracto of the constitutionality of a law is by
nature a “purely legal” matter and takes no account of the specific circumstances in a given
case. According to the author, the same holds true when the conformity of a domestic law
with a treaty obligation is assessed with the same degree of objectivity.
2.10 The author therefore calls upon the Committee to find that her complaint cannot be
deemed inadmissible, as the ground invoked before the Court of Cassation did not constitute
additional evidence of fact and law, but was a “purely legal” ground.
2.11 The author submitted an application to the European Court of Human Rights on 24
June 2013, calling for it to find violations of articles 6 (1) and 9 of the European Convention
on Human Rights. Her application was declared inadmissible by the Court, meeting in singlejudge formation between 21 August and 4 September 2014, on the grounds that the conditions
of admissibility laid down in articles 34–35 of the Convention had not been met.
Complaint
3.1
According to the author, the ban on concealing the face in public spaces and the fact
that she was convicted for wearing the niqab are a violation of her rights under articles 18
and 26 of the Covenant.
3.2
Regarding article 18, wearing the niqab or the burka amounts to wearing a garment
that is customary for a segment of the Muslim faithful. It is an act motivated by religious
beliefs. Consequently, it concerns the observance and practice of a religion, and freedom to
manifest that religion is guaranteed by article 18 of the Covenant, notwithstanding the fact
that wearing the niqab or the burka is not a religious requirement common to all practising
Muslims. The author refers to the Committee’s general comment No. 22 (1993), in which it
stated that the observance and practice of religion or belief may include not only ceremonial
acts, but also such customs as the observance of dietary regulations and the wearing of
distinctive clothing or head coverings. Wearing the niqab or the burka amounts to wearing a
garment that is customary for a segment of the Muslim faithful, an act that is motivated by
religious beliefs and is thus part of the observance and practice of religion, and freedom to
manifest a religion is guaranteed by article 18 of the Covenant.
3.3
According to the author, there can be no disputing that the State is interfering in the
religious freedom of the minority of Muslim women who wear the full-face veil (according
to a parliamentary commission that studied the matter, fewer than 2,000 women are
concerned). The author recalls, in this regard, the reservation entered by the Constitutional
Council of France regarding places of worship, in its decision of 7 October 2010: “The ban
on concealing the face in public spaces cannot, without excessively undermining article 10
of the Declaration of 1789, restrict the exercise of religious freedom in places of worship
3