WUNRN
http://www.siawi.org/article8776.html
France - European Court of Human Rights Upholds France’s Ban on the
Full-Face Veil
Issue: 3 Volume: 19
By: Uzma S. Burney, American Society of International Law - February 03,
2015
On July 13, 2010 and September 14, 2010, respectively, the French National
Assembly and Senate passed a law banning the wearing of “clothing designed to
conceal the face” in public areas. The law provided for criminal penalties
including a fine of up to 150 euros and a citizenship course in the case of
violations.[1] Exceptions were permitted where allowed by legislation for
health or occupational reasons, as well as in the context of athletic,
artistic, or traditional events, and festivals.[2] The law was declared
constitutional by the French Constitutional Court on October 7, 2010 and
entered into force on April 11, 2011. Similar bans were enacted by legislation
in Belgium in 2011, enacted through municipal ordinance in Spain (but
subsequently annulled by the Supreme Court), and contemplated in the
Netherlands, but rejected by the Council of State.
An application challenging the French measure was lodged with the European
Court of Human Rights (the Court) on the day the law came into effect. The
applicant, a French national, alleged that the law violated her rights under
the Convention for the Protection of Human Rights and Fundamental Freedoms (the
Convention),[3] specifically Articles 3 (torture, inhuman or degrading
treatment), 8 (right to private life), 9 (freedom to manifest religion), 10
(freedom of expression), 11 (freedom of association), and 14 (enjoyment of the
rights and freedoms of the Convention without discrimination). Hearings took
place at the Court in November 2013 and a number of third parties submitted
written comments. On July 1, 2014, the Grand Chamber of the Court issued its
judgment, upholding the French law as a legitimate and proportionate measure
designed to protect “respect for the minimum requirements of life in society,”
“the protection of the rights and freedoms of others,” and the principle of
“living together.”[4] The Court ruled that the French law did not violate
Articles 8, 9, 10, or 14 of the Convention and dismissed the remaining claims
as inadmissible. Judges Nussberger and Jäderblom dissented.
The Judgment
The Court found that the ban interfered with Article 8 (right to private
life) and was an infringement on Article 9 (freedom to manifest one’s
religion).[5] Noting that the Convention mechanism is “fundamentally subsidiary”
to national authorities with democratic legitimacy and local insight, the Court
limited its role to ensuring that the measure was justifiable and proportionate
to a legitimate aim.[6]
The French government argued that the law “pursued two legitimate aims:
public safety and ‘respect for the minimum set of values of an open and
democratic society.’” [7] It identified these minimum values as “equality
between men and women, respect for human dignity and respect for the minimum
requirements of life in society”[8] and connected this aim to its obligation to
protect “the rights and freedoms of others.”[9] The Court was unconvinced that
notions of “gender equality” and “human dignity” could justify a blanket ban,
but found that “respect for the minimum requirements of life in society” and
the principle of “living together” could be legitimate aims towards protecting
“the rights and freedoms of others” even though these were not explicitly
stated in Articles 8 and 9 of the Convention and the concept of living together
is yet to be fully articulated.[10]
The Court agreed that concealing the face was tantamount to a barrier
against others, based on the importance of the face in social interaction, and
would breach “the right of others to live in a space of socialization which
makes living together easier.”[11] Acknowledging that Article 9 did not protect
every religiously motivated act, [12] the Court ruled that limitations to the
right to manifest one’s religion could be acceptable. Looking to its own
jurisprudence on limitations to religious expression, the Court opined that the
present case was unique because the religious clothing in question completely
concealed the face. As such, even though the Court found the ban to be
disproportionate with respect to the aim of protecting public safety because no
threat was shown to exist, it accepted that the state might see voluntary
concealment of the face as having a detrimental effect on common social
interaction. The Court decided that a ban was within the powers of the state to
ensure the conditions of “living together.”[13]
The Court further underscored that the ban did not specifically limit
religious expression, only the concealment of the face, and even though it
would negatively impact a group of women[14] who would have to choose between
removing the veil, traumatic criminal prosecution, or isolation from society,
sanctions for conviction were light.[15] Furthermore, the ban was justifiable:
even as it limited one aspect of pluralism by hindering a specific form of religious
expression for one group, it advanced a different aspect of pluralism,
tolerance and broad-mindedness, by protecting the elements necessary for
continued social discourse and the requirements of “living together.”
Recognizing the need to balance multiple conflicting local interests,[16] and
noting that the French government had arrived at a measure through democratic
process, [17] the Court restrained its own review and found that France had to
be given a wide margin of appreciation in legislating the matter, especially
because there was no European consensus on the issue.[18] The Court therefore
found that the French law was proportionate with respect to the aim pursued and
there was no discrimination under Article 14 as the measure, though it had a
negative impact on some women, had an objective and reasonable justification.
The Dissent
The dissent concluded that the ban was a violation of Articles 8 and 9 of
the Convention and criticized the majority for privileging abstract principles
over “concrete individual rights guaranteed by the Convention,”[19] questioning
whether a blanket ban could pursue a legitimate aim or be necessary in a
democratic society. The dissenting judges also challenged the concept of
“living together” and disagreed that the state should be given a wide margin of
appreciation in the instant case.[20]
The dissenters took issue with the majority’s finding that the French
government had a legitimate aim in ensuring the principle of “living together”
or that such an aim could be identified as a subset of the “rights and freedoms
of others.” Noting that the Court’s own jurisprudence on the matter was unclear
and that the generalized concept of “living together” was not explicitly
connected to any of the rights and freedoms guaranteed by the Convention, the
dissenting judges questioned the proportionality of the French measure. They
challenged the majority’s finding that concealing the face made social exchange
impossible, regardless of the importance of the face in social interaction,[21]
and criticized the majority for not explaining how other acceptable forms of
concealing the face such as hairstyles, motorcycle helmets, dark glasses, or
hats differed from the veil in terms of their impact on social engagement.[22]
They further stated that the same values of the Republic, including liberty,
equality, fraternity, pluralism, broadmindedness, and tolerance could be used
to justify the acceptance of a religious dress-code and noted that the French
government did not explain why less restrictive measures such as education
programs and awareness-raising were not adopted ahead of the blanket ban. In
the dissenters’ view, the blanket ban could be seen as “a sign of selective
pluralism and restricted tolerance” and that by banning the full-face veil, the
French government was obscuring a point of social tension rather than
encouraging tolerance among different groups.[23] Thus, the dissenters found
the blanket ban to be disproportionate to its purported aim and irreconcilable
with the “Convention’s restrictive catalogue of permissible grounds for
interference with basic human rights.”[24]
The dissenters also disagreed on the “margin of appreciation” afforded to
the French government by the majority,[25] noting that European consensus was
in fact against a blanket ban, as forty-five out of forty-seven states had not
enacted bans, despite discussions to do so. Similar consensus against a ban was
also found in existing international treaty law, comparative law, international
soft law, and amongst numerous NGOs and international human rights
organizations.[26] The dissent emphasized that dress code is an intimate right
linked to religion, culture and personal convictions, and that while it is
important for the Court to take local conditions into account, it is still the
Court’s obligation to “protect minorities against disproportionate
interferences.”[27]
Finally, the dissenters examined the intent behind the French measure,
i.e., “what is at the core of the wish to protect people against encounters with
others wearing full-face veils,”[28] noting that while the majority identified
veiling as a challenge to open, interpersonal relationships, Dutch proponents
of a similar bill had identified it as a threat to their “subjective feeling of
safety.”[29] The dissenters queried whether the subjective feelings against
veiling were in fact a reaction to the philosophies ascribed to the practice of
veiling such as subservience, dehumanization, violence, and the self-confining
and effacing of women from public life.[30] Noting that there was no “right not
to be shocked or provoked by different models of cultural or religious
identity”[31] and no “right to enter into contact with other people, in public
places, against their will,”[32] the dissent in effect found that the that the
ban’s oppressive consequences to the women concerned outweighed the burden that
it placed on the abstract aim of “living together” and in fact served to
exclude the affected women from society.[33]
Conclusion
The Court’s decision has important legal and public policy implications.
The Court’s acceptance of the concept of “living together” without a definition
of its content may lead to interpretive problems in the future. The Court also
gave a wide margin of appreciation to national governments to legislate on
matters of social import, even where such legislation clearly places
limitations on a small minority who may lack the political clout or numbers to
have its interests fully represented. The likely public policy outcome is
further legislation seeking to implement similar bans. Regardless of the
outcome, the French measure and the subsequent legal proceedings at the
European Court of Human Rights have identified a point of fissure within many
states: how to integrate migrants and minorities with diverse cultural and
religious practices, particularly where some practices may challenge
deeply-held conceptions of the secular, democratic, pluralistic, and tolerant
public sphere.
Notes:
[1] S.A.S. v. France, 2014 Eur. Ct. H.R., Judgment, ¶¶ 28–29, available at http://hudoc.echr.coe.int/sites/eng....
[2] Id.
[3] Subsequent to the Application, in March 2013, the Criminal Division of the
Court of Cassation upheld a judgment of the Community Court of Paris in which a
woman had been found guilty under the Law of October 11, 2010 and had been
ordered to participate in a citizenship course.
[4] Id. ¶¶ 140–141.
[5] Id. ¶¶ 107–108.
[6] Id. ¶ 129.
[7] Id. ¶ 114.
[8] Id. ¶ 116.
[9] Id.
[10] Id. ¶¶ 118–122.
[11] Id. ¶ 122.
[12] Id. ¶ 125.
[13] Id. ¶ 142.
[14] In 2009, approximately 1900 women wore the full-face veil in France (out
of a population of 65 million). Id. ¶ 16.
[15] Id. ¶ 152.
[16] Id. ¶ 126
[17] Id. ¶ 153.
[18] Id. ¶ 154.
[19] S.A.S. v. France, 2014 Eur. Ct. H.R., Dissent, ¶ 2, available at http://hudoc.echr.coe.int/sites/eng....
[20] Id.
[21] Id. ¶ 9.
[22] Id. ¶ 9.
[23] Id. ¶ 14.
[24] Id. ¶ 25.
[25] Id. ¶ 16.
[26] Id. ¶ 19.
[27] Id. ¶ 20.
[28] Id. ¶ 6.
[29] Id.
[30] Id. ¶ 6.
[31] Id. ¶ 7.
[32] Id. ¶ 8.
[33] Id. ¶¶ 21–23.