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THE FACTS

The applicant, Mr Suku Phull, is a United Kingdom national who was born in 1953 and lives in Britain.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a practising Sikh and is thus required by his religion to wear a turban. He stated that in October 2003 he travelled to Strasbourg on a business trip; on the return journey on 10 October 2003 he was compelled by security staff at Entzheim Airport to remove his turban for inspection as he made his way through the security checkpoint prior to entering the departure lounge.

COMPLAINTS

The applicant complained under Article 9 of the Convention of a violation of his right to freedom of religion by the airport authorities. He argued that there had been no need for the security staff to make him remove his turban, especially as he had not refused to go through the walk-through scanner or to be checked with a hand-held detector.

The applicant also complained under Article 2 of Protocol No. 4 of a violation of his right to freedom of movement. In his submission, as a national of one of the member States of the European Union, he should be exempted from security procedures of this type on the territories of the member States.

THE LAW

The applicant complained of a violation of his right to freedom of religion by the airport authorities. He argued that there had been no need for the security staff to make him remove his turban, especially as he had not refused to go through the walk-through scanner or to be checked with a hand-held detector. He relied on Article 9 of the Convention, which provides:

“1.  Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2.  Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

The applicant also complained under Article 2 of Protocol No. 4 of a violation of his right to freedom of movement. In his submission, as a national of one of the member States of the European Union, he should be exempted from security procedures of this type on the territories of the member States. He relied on Article 2 of Protocol No. 4, which provides:

“1.  Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2.  Everyone shall be free to leave any country, including his own.

3.  No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

4.  The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”

The Court notes that the applicant has not raised these complaints in the French courts. However, it considers it unnecessary to verify whether or not domestic remedies were available to him within the meaning of Article 35 § 1 of the Convention, as, in any event, the application is inadmissible for other reasons which are set out below.

With regard to the first complaint, as the Sikh religion requires its male followers to wear a turban, the Court is prepared to work on the premise that the disputed measure constituted interference with the applicant’s freedom to manifest his religion or beliefs. It further notes that the applicant did not allege that the measure was not “prescribed by law” and finds that it pursued at least one of the legitimate aims listed in the second paragraph of Article 9 (guaranteeing public safety).

The Court must therefore determine whether the interference was “necessary in a democratic society in the interests of public safety” within the meaning of the second paragraph of Article 9.

In X v. the United Kingdom (no. 7992/77, Commission decision of 12 July 1978, Decisions and Reports 14, p. 234), the applicant, a practising Sikh, was ordered to pay fines for failing to comply with a regulation requiring motorcyclists to wear a protective helmet. He alleged a violation of Article 9, arguing that, as his religion required him to wear a turban, it was not possible for him to wear a helmet. The Commission found that the obligation to wear a helmet was a necessary safety measure and that any resulting interference with the applicant’s freedom of religion was justified for the protection of health by virtue of Article 9 § 2.

The Court reaches a like conclusion in this case. Firstly, security checks in airports are undoubtedly necessary in the interests of public safety within the meaning of that provision. Secondly, the arrangements for implementing them in the present case fell within the respondent State’s margin of appreciation, particularly as the measure was only resorted to occasionally. This part of the application is therefore manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

As to the second complaint, the Court finds that, in themselves, the security checks to which passengers are subject in airports prior to departure do not constitute a restriction on freedom of movement. This part of the application is therefore incompatible ratione materiae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 and 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

PHULL v. FRANCE DECISION


PHULL v. FRANCE DECISION 


PHULL v. FRANCE DECISION