DISSENTING OPINION OF JUDGE DE GAETANO

I have had the benefit of reading the separate opinion of Judge O ’ Leary. I share entirely the concerns that she expresses so eruditely regarding the reasoning in the judgment.

However, those very same concerns lead me ineluctably to the conclusion that in this case there has been a violation of Article 9. The thrust of the judgment is to the effect that the abstract principle of laïcité or secularism of the State requires a blanket prohibition on the wearing by a public official at work of any symbol denoting his or her religious belief. That abstract principle becomes in and of itself a “pressing social need” to justify the interference with a fundamental human right. The attempt to hedge the case and to limit its purport to the specific facts applicable to the applicant is, as pointed out by Judge O ’ Leary, very weak and at times contradictory. The judgment proceeds from and rests on the false (and, I would add, very dangerous) premise, reflected in paragraph 64, that the users of public services cannot be guaranteed an impartial service if the public official serving them manifests in the slightest way his or her religious affiliation – even though quite often, from the very name of the official displayed on the desk or elsewhere, one can be reasonably certain of the religious affiliation of that official.

Moreover, it would also seem that what is prohibited under French law with regard to public officials is the subjective manifestation of one ’ s religious belief and not the objective wearing of a particular piece of clothing or other symbol. A woman may wear a headscarf not to manifest a religious belief, or any belief for that matter, but for a variety of other reasons. The same can be said of a man wearing a full beard, or a person wearing a cross with a necklace. Requiring a public official to “disclose” whether that item of clothing is a manifestation or otherwise of his or her religious belief does not sit well with the purported benefits enjoyed by public officials as mentioned in paragraph 66 of the judgment.

While States have a wide margin of appreciation as to the conditions of service of public officials, that margin is not without limits. A principle of constitutional law or a constitutional “tradition” may easily end up by being deified, thereby undermining every value underpinning the Convention. This judgment comes dangerously close to doing exactly that.

[1] . See, variously, Dahlab v . Switzerland (dec.), no. 42393/98, ECHR 2001-V; KurtulmuÅŸ v . Turkey (dec.), no. 65500/01, ECHR 2006-II ; and Karaduman v. Turkey (dec.), no. 41296/04, 3 April 2007.

[2] . See, variously, Köse and O thers v. Turkey (dec.), no. 26625/02, ECHR 2006-II; Dogru v. France , no. 27058/05, 4 December 2008 ; Kervanci v. France , no. 31645/04, 4 December 2008; Gamaleddyn v. France (dec.), no. 18527/08, 30 June 2009; Aktas v. France (dec.), no. 43563/08, 30 June 2009; Ranjit Singh v. France (dec.), no. 27561/08, 30 June 2009; Jasvir Singh v. France (dec.), no. 25463/08, 30 June 2009 ; and Leyla Şahin v. Turkey [GC] , no. 44774/98, ECHR 2005-XI.

[3] . See, for confirmation of Kurtulmuş , albeit in a different context, Ahmet Arslan v. Turkey , no. 41135/98, § 48, 23 February 2010.

[4] . Eweida and O thers v. the United Kingdom , nos. 48420/10 and 3 others, ECHR 2013 .

[5] . See the reference, for example, in Leyla Şahin ( cited above, § 116 ) to “the values of pluralism, respect for the rights of others and, in particular, equality before the law of men and women”.

[6] . Neither is the judgment limited to civil servants, the applicant having been merely an employee of a public body, neither enjoying the benefits which civil - service employment confers nor, arguably, some of the duties which it imposes. This point alone distinguishes the present case from S.A.S. v. France ( [GC], no. 43835/11, § 145, ECHR 2014), where the legitimate aim and margin of appreciation recognised by the Court were also very wide but where the scope of application of the impugned legislation was very narrow.

[7] . See, particularly, S.A.S. v. France , cited above , and Lautsi and O thers v. Italy [GC] , no. 30814/06, ECHR 2011.

[8] . See paragraph 56 of the present judgment and the jurisprudence cited therein. See, however, paragraph 3 of the dissenting opinion in the Leyla Şahin case on the question of whether there can really be said to be a “diversity of practice between the States” and, therefore, the lack of a European consensus. See also the comparative analysis of Council of Europe m ember States in paragraph 47 of the judgment in Eweida and O thers .

[9] . If, in any event, the 2000 Opinion of the Conseil d’État is the key event in the instant case (see § 70), one could wonder why equity did not require a reasonable lapse of time for interested persons to become acquainted with it. See, in the context of exhaustion, Valada Matos das Neves v. Portugal , no. 73798/13, § 105, 29 October 2015.

[10] . See the Opinion of the Conseil d’État (no. 346.893) of 27 November 1989, which concerned school pupils, and which is reproduced at § 26 of Dogru v. France .

[11] . Contrast with the very different legal framework described in the judgment in Leyla Şahin , cited above, §§ 37, 39, 41 and 120 , or the much clearer French legal framework in issue in Dogru , cited above, §§ 17-32.

[12] . See, inter alia , Leyla Şahin , cited above, § 109.

[13] . See S.A.S. v. France , cited above, §§ 153-54.

[14] . See P. Bosset, “Mainstreaming religious diversity in a secular and egalitarian State: the road(s) not taken in Leyla Şahin v. Turkey” , E. Brems (ed.), Diversity and European Human Rights: R ewriting J udgments of the ECHR , Cambridge University Press , 2013, pp. 192-21 7 , at p. 198.

[15] . See Eweida and O thers , cited above, § 47.

[16] . See the submissions of the Government Commissioner reproduced in paragraph 31 of the present judgment . It is worth recalling, as an aside, that France is a member of the European Union and therefore subject to Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation ( Official Journal L 303, p. 16). This Directive prohibits direct and indirect discrimination on grounds of religion and beliefs. The Court of Justice of the European Union has not yet dealt with a preliminary reference or infringement action concerning the wearing of religious symbols at work. It remains to be seen whether it would follow a “functional” approach (as the terms of Article 4 § 1 might suggest) or whether, on the basis of the broader terms of Article 2 § 5 of the Directive, which to a large extent resembles Article 9 § 2 of the Convention, an approach akin to that of the present judgment would pass muster. See, however, for examples of “functional” ECJ reasoning pursuant to that Directive, the judgments of 12 January 2010 in Wolf , C-2 2 9/08 , EU:C:2010:3 , and 13 September 2011in Prigge and Others , C-447/09 , EU:C:2011:573. As the Directive applies to employment in both the French public and private sector s , the Court’s case-law thereunder highlights the possible vulnerability of the ban on wearing religious symbols when assessed with reference to the principle of non-discrimination in the employment context.

[17] . Contrast the approach in this case with paragraphs 94 and 95 of Eweida and O thers , or with the D ecision of the United Nations Human Rights Committee in Bikram j it Singh v. France , § 8.7, C ommunication No. 1852/2008, according to which the State P arty had not furnished compelling evidence that, by wearing his keski , the applicant would have posed a threat to the rights and freedoms of other pupils or to order at the school.

[18] . While the 2013-14 report of the French “Secularism Observatory” refers to friendly settlements and conciliation (see paragraph 71 of the present judgment ), the facts on the ground in the instant case suggest a slightly different reality. See further, as regards reasonable accommodation, the dissenting opinion in Francesco Sessa v. Italy , no. 28790/08, ECHR 2012 , and K. Alidadi, “Reasonable Accommodation s for Religion and Belief: Adding Value to Article 9 ECHR and the European Union’s Anti-Discrimination Approach to Employment?” , European Law Review , Issue 6, 2012 , pp. 693-715.

[19] . See Lautsi and Others , cited above, § 72.