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1. The author of the
communication is Raihon Hudoyberganova, an Uzbek national born in 1978. She
claims to be a victim of violations by Uzbekistan of her rights under
articles 18 and 19 of the International Covenant on Civil and Political
Rights. [FN1] She is not represented by counsel.
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[FN1] The International Covenant on Civil and Political Rights entered into
force for the State party on 1 September 1991 - date of its independence
from the USSR, and the Optional Protocol entered into force for the State
party on 28 September 1995 (accession).
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THE FACTS AS PRESENTED BY THE AUTHOR
2.1 Ms. Hudoyberganova was a student at the Farsi Department at the Faculty
of languages of the Tashkent State Institute for Eastern Languages since
1995 and in 1996 she joined the newly created Islamic Affairs Department of
the Institute. She explains that as a practicing Muslim, she dressed
appropriately, in accordance with the tenets of her religion, and in her
second year of studies started to wear a headscarf ("hijab"). According to
her, since September 1997, the Institute administration began to seriously
limit the right to freedom of belief of practicing Muslims. The existing
prayer room was closed and when the students complained to the Institute's
direction, the administration began to harass them. All students wearing the
hijab were "invited" to leave the courses of the Institute and to study at
the Tashkent Islamic Institute instead.
2.2 The author and the concerned students continued to attend the courses,
but the teachers put more and more pressure on them. On 5 November 1997,
following a new complaint to the Rector of the Institute alleging the
infringement of their rights, the students' parents were convoked in
Tashkent. Upon arrival, the author's father was told that Ms. Hudoyberganova
was in touch with a dangerous religious group which could damage her and
that she wore the hijab in the Institute and refused to leave her courses.
The father, due to her mother serious illness, took his daughter home. She
returned to the Institute on 1 December 1997 and the Deputy Dean on
Ideological and Educational matters called her parents and complained about
her attire; allegedly, following this she was threatened and there were
attempts to prevent her from attending the lectures.
2.3 On 17 January 1998, she was informed that new regulations of the
Institute have been adopted, under which students had no right to wear
religious dress and she was requested to sign them. She signed them but
wrote that she disagreed with the provisions which prohibited students from
covering their faces. The next day, the Deputy Dean on Ideological and
Educational matters called her to his office during a lecture and showed her
the new regulations again and asked her to take off her headscarf. On 29
January the Deputy Dean called the author's parents and convoked them,
allegedly because Ms. Hudoyberganova was excluded from the students'
residence. On 20 February 1998, she was transferred from the Islamic Affairs
Department to the Faculty of languages. She was told that the Islamic
Department was closed, and that it was possible to re-open it only if the
students concerned ceased wearing the hijab.
2.4 On 25 March 1998, the Dean of the Farsi Department informed the author
of an Order by which the Rector had excluded her from the Institute. The
decision was based on the author's alleged negative attitude towards the
professors and on a violation of the provisions of the regulations of the
Institute. She was told that if she changed her mind about the hijab, the
order would be annulled.
2.5 As to the exhaustion of domestic remedies, the author explains that on
10 March 1998, she wrote to the Ministry of Education, with a request to
stop the infringement of the law in the Institute; allegedly, the result was
the loss of her student status on 15 March 1998. On 31 March 1998, she filed
a complaint with the Rector, claiming that his decision was illegal. On 13
April 1998, she complained to the Chairman of the Committee of Religious
Affairs (Cabinet of Ministers); on 22 April 1998, the Chairman advised her
to respect the Institute's regulations. On 14 April 1998, she wrote to the
Spiritual Directorate of the Muslims in Uzbekistan, but did not receive "any
written reply". On 3 March and 13 and 15 April 1998, she wrote to the
Minister of Education and on 11 May 1998, she was advised by the Deputy
Minister to comply with the regulations of the Institute.
2.6 On 15 May 1998, a new law "On the Liberty of Conscience and Religious
Organisations" entered into force. According to article 14, Uzbek nationals
cannot wear religious dress in public places. [FN2] The administration of
the Institute informed the students that all those wearing the hijab would
be expelled.
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[FN2] Article 1 of the law read as follows: "Article 1. The aim of the
present law is to ensure the right of every person to freedom of worship and
religion, and the citizens equality irrespective of their religious
convictions, and to regulate relations arising from religious organizations'
activity".
Article 14 reads as follows: "Article 14. Religious rites and ceremonies
Religious organizations have a right to create and maintain facilities for
free worship and carrying out religious rites, and to maintain pilgrimage
sites. Worship, religious rites and ceremonies shall be exercised at a
religious organization's premises, prayer buildings and other properties
belonging to the organization, at pilgrimage sites, cemeteries, and in cases
of ritual necessity and at citizens' will at home. Worship and religious
rites can be exercised in hospitals, nursing homes, detention centers,
prisons and labour camps at the request of the people staying there. Public
worship and religious rites can be held outside religious buildings in the
order established by the law of the Republic of Uzbekistan. Citizens of the
Republic of Uzbekistan (except religious organization's ministers) cannot
appear in public places in religious attire. Religious organizations cannot
subject believers to compulsory payment of money, or taxation, and to
actions insulting their honour and dignity".
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2.7 On 20 May 1998, the author filed a complaint with the Mirabadsky
District Court (Tashkent), requesting to have her student rights restored.
On 9 June 1998, the legal counsel of the Institute requested the court to
order the author's arrest on the ground of the provisions of article 14 of
the new law. Ms. Hudoyberganova's lawyer objected that this law violated
human rights. According to the author, during the court's sitting on 16
June, her lawyer called on her behalf the lawyer of the Committee of
Religious Affairs, who testified that the author's dresses did not
constitute a cult dress.
2.8 On 30 June 1998, the Court dismissed the author's claim, allegedly on
the ground of the provisions of article 14 of the Law on Freedom of
Conscience and Religious Organizations. According to the author, the
Institute provided the court with false documents to attest that the
administration had warned her that she risked expulsion. The author then
requested the General Prosecutor, the deputy Prime-Minister, and the
Chairman of the Committee of Religious Affairs, to clarify the limits of the
terms of "cult" (religious) dress, and was informed by the Committee that
Islam does not prescribe a specific cult dress.
2.9 On 15 July 1998, the author filed an appeal against the District's court
decision (of 30 June 1998) in the Tashkent City Court and on 10 September,
the City Court upheld the decision. At the end of 1998 and in January 1999,
she complained to the Parliament, to the President of the Republic, and to
the Supreme Court; the Parliament and the President's administration
transmitted her letters to the Supreme Court. On 3 February 1999 and on 23
March 1999, the Supreme Court informed her that it could find no reasons to
challenge the courts' decisions in her case.
2.10 On 23 February 1999, she complained to the Ombudsman, and on 26 March
1999 received a copy of the reply to the Ombudsman of the Institute's
Rector, where the Rector reiterated that Ms. Hudoyberganova constantly
violated the Institute's regulations and behaved inappropriately with her
professors, that her acts showed that she belonged to an extremist
organisation of Wahabits, and that he had no reason to readmit her as
student. On 12 April 1999, she complained to the Constitutional Court and
was notified that it had no jurisdiction to deal with her case and that her
claim had been channelled to the General Prosecutor's Office, which had
forwarded it to the Tashkent Prosecutor's Office. On 30 June 1999, the
Tashkent Prosecutor's Office informed her that there were no reasons to
annul the court's rulings in her case. On 1 July 1999, she complained again
to the General Prosecutor with a request to have her case examined. She
received no reply.
THE COMPLAINT
3. The author claims that she is a victim of violations of her rights under
articles 18 and 19 of the Covenant, as she was excluded from University
because she wore a headscarf for religious reasons and refused to remove it.
STATE PARTY'S OBSERVATIONS
4.1 On 24 May 2000, 26 February 2001, 11 October 2001, and 3 September 2004,
the State party was requested to submit to the Committee information and
comments on the admissibility and merits of the communication. The State
party presented its comments on 21 October 2004. It recalls that on 21 May
1998, the author applied to the Mirabad District Court of Tashkent with a
request to acknowledge the illegality of her dismissal from the Tashkent
State Institute of Eastern Languages and to restore her as a student. On 30
June 1998, the Mirabadsky District Court dismissed her appeall.
4.2 The State party explains that according to the Court's civil case, it
transpired that the author was admitted in the Faculty of Languages in the
Institute in 1995, and in 1996 she continued her studies in the Faculty of
History (Islamic Department). According to paragraph 2 (d) of the Internal
Regulations (regulating the rights and obligations of the Institute's
students), in the Institute, students are forbidden to wear clothes
"attracting undue attention", and forbidden to circulate with the face
covered (with a hijab). This regulation was discussed at a general meeting
of all students on 15 January 1998. The author was presented the text and
she made a note that she disagrees with the requirements of paragraph 2 (d).
On 26 January 1998, the Dean of the Faculty of History warned her that she
violated the provisions of paragraph 2 (d), of the Institute's regulations.
The author refused to sign the warning and a record in this respect was made
on 27 January 1998.
4.3 On 10 February 1998, by order of the Dean of the Faculty of History, the
author was reprimanded for infringement of the Internal Regulations. By
order of the Rector of the Institute of 16 March 1998, Ms. Hudayberganova
was excluded from the Institute. The order was grounded on the "rough
immoral attitude toward a teacher and infringement of the internal
regulations of the Institute, after numerous warnings". According to the
State party, no cassation appeal was introduced against this decision. Her
claim under the supervisory procedure (nadzornaya zhaloba) gave no result.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
5.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
5.2 The Committee notes that the same matter is not being examined under any
other international procedure and that domestic remedies have been
exhausted. [No challenge from the State party to this conclusion has been
received.] The requirements of article 5, paragraph 2 (a) and (b), of the
Optional Protocol have thus been met.
5.3 The Committee has noted that the author has invoked article 19, of the
Covenant, without however providing specific allegations on this particular
issue, but limited herself to the mere enumeration of the above article.
Therefore, the Committee concludes that the author has not substantiated
this claim, for purposes of admissibility, and that this part of the
communication is inadmissible under article 2 of the Optional Protocol.
5.4 As to the author's remaining claims under article 18 of the Covenant,
the Committee considers that it has been sufficiently substantiated for
purposes of admissibility, and decides to proceed to its examination on the
merits.
EXAMINATION OF THE MERITS
6.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it, as required under
article 5, paragraph 1, of the Optional Protocol.
6.2 The Committee has noted the author's claim that her right to freedom of
thought, conscience and religion was violated as she was excluded from
University because she refused to remove the headscarf that she wore in
accordance with her beliefs. The Committee considers that the freedom to
manifest one's religion encompasses the right to wear clothes or attire in
public which is in conformity with the individual's faith or religion.
Furthermore, it considers that to prevent a person from wearing religious
clothing in public or private may constitute a violation of article 18,
paragraph 2, which prohibits any coercion that would impair the individual's
freedom to have or adopt a religion. As reflected in the Committee's General
Comment No. 22 (para.5), policies or practices that have the same intention
or effect as direct coercion, such as those restricting access to education,
are inconsistent with article 18, paragraph 2. It recalls, however, that the
freedom to manifest one's religion or beliefs is not absolute and may be
subject to limitations, which are prescribed by law and are necessary to
protect public safety, order, health, or morals, or the fundamental rights
and freedoms of others (article 18, paragraph 3, of the Covenant). In the
present case, the author's exclusion took place on 15 March 1998, and was
based on the provisions of the Institute's new regulations. The Committee
notes that the State party has not invoked any specific ground for which the
restriction imposed on the author would in its view be necessary in the
meaning of article 18, paragraph 3. Instead, the State party has sought to
justify the expulsion of the author from University because of her refusal
to comply with the ban. Neither the author nor the State party have
specified what precise kind of attire the author wore and which was referred
to as "hijab" by both parties. In the particular circumstances of the
present case, and without either prejudging the right of a State party to
limit expressions of religion and belief in the context of article 18 of the
Covenant and duly taking into account the specifics of the context, or
prejudging the right of academic institutions to adopt specific regulations
relating to their own functioning, the Committee is led to conclude, in the
absence of any justification provided by the State party, that there has
been a violation of article 18, paragraph 2.
7. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the Covenant, is of the view that the facts before it
disclose a violation of article 18, paragraph 2, of the Covenant.
8. In accordance with article 2, paragraph 3 (a), of the Covenant, the State
party is under an obligation to provide Ms. Hudoyberganova with an effective
remedy. The State party is under an obligation to take measures to prevent
similar violations in the future.
9. Bearing in mind that, by becoming a party to the Optional Protocol, the
State party has recognized the competence of the Committee to determine
whether there has been a violation of the Covenant or not and that, pursuant
to article 2 of the Covenant, the State party has undertaken to ensure to
all individuals within its territory or subject to its jurisdiction the
rights recognized in the Covenant and to provide an effective and
enforceable remedy in case a violation has been established, the Committee
wishes to receive from the State party, within 90 days, information about
the measures taken to give effect to the Committee's Views.
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[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.]
The texts of two individual opinions signed by Committee members Mr.
Hipólito Solari-Yrigoyen and Sir Nigel Rodley are appended to the present
document.
INDIVIDUAL OPINION (DISSENTING) BY COMMITTEE MEMBER MR. HIPOLITO
SOLARI-YRIGOYEN
My dissenting opinion regarding this communication is based on the following
grounds:
In order to comply with the provisions of article 5, paragraph 1, of the
Optional Protocol, the communication should be studied in the light of all
the information supplied by the parties. In the present case, it is the
author who has provided most of the information, although her statements
fail to underpin her own allegations, and even contradict them.
According to the author (para 2.4), she was excluded from the Tashkent State
Institute for Eastern Languages by the Rector, after numerous warnings, on
the following grounds:
1. Her negative attitude towards the teaching staff;
2. Her infringement of the regulations of the Institute.
Regarding her negative attitude towards the teachers, the decision of
Mirabad district court revealed that the author had accused one of the
teachers of bribery, claiming that he was offering pass marks in
examinations in return for money. According to the State party (para. 4.3),
she was excluded because of her "rough immoral attitude toward a teacher".
The author has not supplied any information to justify her serious
accusation against the teacher which would nullify the initial ground given
for her expulsion. Nor has she explained any link between this ground for
exclusion and the alleged violation of article 18 of the Covenant.
Regarding the infringement of the regulations of the Institute, which did
not permit the wearing of religious clothing on Institute premises, the
author states that she disagreed with the provisions because they
"prohibited students from covering their faces" (para. 2.3). The State party
points out that the internal regulations forbid students to wear clothes
"attracting undue attention", and to circulate with the face covered (para.
4.2). Although the author and the State party do not specify which type of
clothing the author was wearing, she states that she dressed "in accordance
with the tenets of her religion". However, the author herself states that
she complained to the Chairman of the Committee of Religious Affairs
(Cabinet of Ministers), who "informed [her] that Islam does not prescribe a
specific cult dress" (para. 2.8). The author has not rebutted this
assertion, which she herself passed on.
Regarding the regulations of the university institute, it is necessary to
bear in mind that academic institutions have the right to adopt specific
rules to govern their own premises. It should also be added that these
regulations applied to all students without exception, since the institution
involved was a State institute of education, not a place of worship, and one
in which the freedom to exercise one's own religion is subject to the need
to protect the fundamental rights and freedoms of others, that is, religious
freedom for all, safeguarded by the guarantee of equality before the law,
whatever the religious convictions or beliefs of each individual student. It
is not appropriate to request the State party to provide specific grounds
for the restriction complained of by the author, since the regulations
applied impose general rules on all students, and there is no restriction
imposed on her alone or on the adherents of one religion in particular.
Furthermore, the exclusion of the author, according to her own statements,
arose from more complex causes, and not only the religious clothing she wore
or her demand to cover her face within the Institute.
For the reasons set out and in the light of the information supplied, I
conclude that the author has not substantiated any of her allegations that
she was victim of a violation of article 18 of the Covenant.
In accordance with article 5, paragraph 4, of the Optional Protocol, I
consider that the facts in the present case do not reveal any violation of
articles 18 and 19 of the Covenant.
[Signed] Hipólito Solari-Yrigoyen
[Done in English, French and Spanish, the Spanish text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.]
INDIVIDUAL OPINION BY COMMITTEE MEMBER SIR NIGEL RODLEY
I agree with the finding of the Committee and with most of the reasoning in
paragraph 6.2. I feel obliged, however, to dissociate myself from one
assertion in the final sentence of that paragraph, in which the Committee
describes itself as 'duly taking into account the specifics of the context'.
The Committee is right in the implication that, in cases involving such
'clawback' clauses as those contained in articles 12, 18, 19, 21 and 22, it
is necessary to take into account the context in which the restrictions
contemplated by those clauses are applied. Unfortunately, in this case, the
State party did not explain on what basis it was seeking to justify the
restriction imposed on the author. Accordingly, the Committee was not in a
position to take any context into account. To assert that it has done so,
when it did not have the information on the basis of which it might have
done so, enhances neither the quality nor the authority of its reasoning.
[Signed] Sir Nigel Rodley
[Done in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.] |
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