2019/11/27 – 25 Cdo 348/2019 (summary)

Judgment of the Supreme Court of 27 November 2019, Ref. No. 25 Cdo 348/2019
(indirect discrimination, freedom of religion, expression of faith by visible symbols)

The claimant in this case is Somalian national who intended to pursue her studies at a school (the defendant in the present case) in order to become a caretaker. At the meeting with the deputy headmaster in June 2013, the claimant agreed not to wear Muslim headscarf (hijab) during the practical part of classes. In September 2013, the headmaster of the school summoned the claimant due to her failure to submit the residence permit in the Czech Republic. The headmaster was displeased by the claimant wearing the hijab and as a result of this reaction the claimant expressed her intention not to pursue her studies at the defendant school. Later that day she submitted the half-filled form of her withdrawing from the studies. She then filed an action before a court and demanded a written apology and compensation for the non-pecuniary damage she suffered. The court of first instance dismissed her action – due to the fact that she did not submit the residence permit and therefore, failing to satisfy formal legal requirements, she could not become a student of the school. The court of first instance also considered that the headmaster did not proceed in a discriminatory manner. The court of appeal confirmed the decision. In its reasoning, however, considered that the claimant in fact enrolled in the defendant school. Consequently, it assessed the legitimacy of her demands from the perspective of the Czech Anti-discrimination Law. It concluded that the claimant was not treated differently nor was she being disadvantaged, that she did not have the right to wear religious symbol without any restriction and that the refusal to allow wearing the hijab by the defendant school did not amount to direct nor indirect discrimination based on religion.

In the extraordinary appeal, the Supreme Court addressed the question as to whether the requirement of the defendant school that a Muslim student could not wear a hijab during theoretical part of classes is justified. The Supreme Court firstly noted that the claimant agreed not to wear hijab during practical part of classes and that the question of wearing hijab was not addressed in respect to theoretical classes in school. The Supreme Court then moved to assess the case from the perspective of indirect discrimination. It noted that even though indirect discrimination is not prohibited in absolute terms, there must be a reasonable and objective justification. In the present case, the claimant was a Muslim woman who protected part of her head with hijab and considered wearing hijab as an expression of her religious belief. Since she could not wear hijab and, as a result, was unable to express her faith, the prohibition to wear head cover in the school had for her heavier consequences. She was thus disadvantaged in comparison to her peers who were of other religious beliefs. The Supreme Court therefore accepted that the claimant met the requirements to prove the presumption of an indirect discrimination based on religion with respect to the access to education. Moreover, the Supreme Court referred to Art. 9 (2) of the European Convention on Human Rights which protects the expression of the religious faith and noted that law may restrict such expressions only if it pursues legitimate aims, such as protection of public security, order, health or morals. In this regard, Art. 7 (1) of the Czech Anti-discrimination Law enables different treatment based on religion in the access to the education if it is objectively justified by a legitimate aim and that the means to attain such aim are reasonable and necessary.

The Supreme Court consequently assessed the prohibition to wear a head cover stipulated in the school regulations which had as its aim to meet the social norms in the school premises. According to the Supreme Court, the claimant did not breach any norms of social behaviour since, by covering her hair, she has not aroused general nuisance or disturbance. It further noted that even though wearing hijab is an alien element in the Czech society, it does not constitute a breach of social norms or morality. According to the Supreme Court, prohibition to wear head cover in cases where covering head is an expression of faith is not justified by the legitimate aim of preserving rules of social behaviour or good morals. Neither does this prohibition pursue the protection of public security or public order since the hijab does not increase any security risk, it does not cause any problems in communication or movement, nor does it represent any health risks.

The Supreme Court then addressed the reasoning of the court of appeal, which in the restricting measure of the school regulation saw the legitimate aim of protection of rights and freedoms of others. The court of appeal mainly argued that school should be neutral environment, that mandatory tolerance of religious symbols does not have legal basis in the Czech Republic and that using of such symbols is in violation with the right to be freely without religion and not to be exposed to such symbols. The Supreme Court disagreed and based its finding on the confessional neutrality of the Czech Republic which means that the state does not interfere with the fundamental freedom of religion. On the contrary, it creates the conditions for its realisation and protects the exercise of rights and freedoms from disturbing interferences. The Supreme Court referred to § 2 (1) (a) and (c) of the Education Code according to which the education is based on the principles of equal access to education without any discrimination based on, inter alia, faith or religion. At the same time, it is based on mutual respect, tolerance to opinions, solidarity and dignity of all persons participating in the education. According to the Supreme Court, it could not be inferred from the above-mentioned that a right to be without religion has a higher power than a right to religion and right to its outward expression. Confession of Islam should be, under the conditions stipulated in the Czech legal order, tolerated by the majority. It is especially so in the field of education since one of its tasks is to lead students towards the respect of rights of others and religious tolerance. Persons without religious confession or of other religion should therefore respect external manifestations of religious conviction of others.

The Supreme Court concluded that the prohibition to wear head cover for female students whose religion is Islam during the theoretical part of classes at the defendant school is not justified by the legitimate aim. In the present case, the claimant was therefore indirectly discriminated with regard to the access to education.