PROCEDURE

The case originated in an application (no. 27058/05) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Ms Belgin Dogru (“the applicant”), on 22 July 2005.

The applicant, who was granted legal aid, was represented by Mr M. Bono, a lawyer practising in La Ferté-Macé. The French Government (“the Government”) were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs.

The applicant alleged a violation of her right to religious freedom and her right to education guaranteed by Article 9 of the Convention and Article 2 of Protocol No. 1 respectively.

On 7 November 2006 the Court decided to communicate the application to the Government. It was also decided to examine the admissibility and merits of the case at the same time (Article 29 § 3 of the Convention).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1987 and lives in Flers.

The applicant, a Muslim aged eleven at the material time, was enrolled in the first year of a state secondary school in Flers for the academic year 1998-1999. From January 1999 onwards she wore a headscarf to school.

On seven occasions in January 1999 the applicant went to physical education and sports classes wearing her headscarf and refused to take it off despite repeated requests to do so by her teacher, who explained that wearing a headscarf was incompatible with physical education classes. The teacher sent two reports to the headmaster dated 22 January and 8 February 1999.

At a meeting on 11 February 1999 the school's pupil discipline committee decided to expel the applicant from the school for breaching the duty of assiduity by failing to participate actively in physical education and sports classes.

The applicant's parents appealed against that decision to the appeal panel.

In a decision of 17 March 1999 the Director of Education for Caen upheld the decision of the school's pupil discipline committee, after obtaining the opinion of the appeal panel which was based on four grounds: i) the duty of assiduity (as defined in section 10 of the Education (General Principles) Act – Law no. 89-486 of 10 July 1989; Article 3-5 of Decree no. 85-924 of 30 August 1985 on Local State Schools; and the school's internal rules); ii) the provisions of the school's internal rules stipulating that pupils must wear clothing that “complies with the health and safety rules” and attend physical education and sports classes in their sports clothes; iii) a memorandum (no. 94-116 of 9 March 1994) on pupils' safety during school activities, which specified that “rigorous compliance with the rules governing teaching staff's liability shall not eclipse the very broad personal discretion left to the individual teacher when dealing with actual concrete situations” and that “while managing his or her class the teacher must be capable of identifying and putting a stop to any behaviour on the part of pupils – other than sudden or unforeseeable conduct – that may present a danger”; iv) a decision of the Conseil d'Etat dated 10 March 1995 in which it had held that wearing a headscarf as a sign of religious affiliation was incompatible with the proper conduct of physical education and sports classes.

The applicant indicated that she subsequently took correspondence courses in order to continue her school studies.

On 28 April 1999 the applicant's parents, acting on their own behalf and as their minor daughter's legal guardians, applied to the Caen Administrative Court to have the decision of the Director of Education set aside.

On 5 October 1999 the court rejected their application. It considered that, by attending physical education and sports classes in dress that would not enable her to take part in the classes in question, the applicant had failed to comply with the duty to attend classes regularly. It also found that the applicant's attitude had created an atmosphere of tension within the school and that on the basis of all the factors involved her expulsion from the school had been justified, regardless of the proposal she had made at the end of January to wear a hat instead of her headscarf.

The applicant's parents appealed against that judgment. On 31 July 2003 the Nantes Administrative Court of Appeal dismissed their appeal, on the same grounds as the lower court, finding that the applicant, by behaving as she had done, had overstepped the limits of the right to express and manifest her religious beliefs on the school premises.

The applicant's parents lodged an appeal on points of law with the Conseil d'Etat, relying, inter alia, on their daughter's right to freedom of conscience and expression.

On 29 December 2004 the Conseil d'Etat declared the appeal inadmissible.